\n ARTICLE I. DEFINITIONS<\/p>\nSECTION 1.01 Certain Defined Terms……………………………………………………………..1
\nSECTION 1.02 Other Terms……………………………………………………………………..18<\/p>\n
ARTICLE II. AMOUNTS AND TERMS OF THE PURCHASES<\/p>\n
SECTION 2.01 Purchase Facility………………………………………………………………..18
\nSECTION 2.02 Making Purchases…………………………………………………………………20
\nSECTION 2.03 Receivable Interest Percentage…………………………………………………….21
\nSECTION 2.04 Settlement Procedures…………………………………………………………….22
\nSECTION 2.05 Fees……………………………………………………………………………24
\nSECTION 2.06 Payments and Computations, Etc…………………………………………………….25
\nSECTION 2.07 Dividing or Combining Receivable Interests………………………………………….25
\nSECTION 2.08 Yield Protection…………………………………………………………………26
\nSECTION 2.09 Sharing of Payments, Etc………………………………………………………….27
\nSECTION 2.10 Effect of Early Payments………………………………………………………….27<\/p>\n
ARTICLE III. CONDITIONS OF PURCHASES<\/p>\n
SECTION 3.01 Conditions Precedent to Initial Purchase……………………………………………28
\nSECTION 3.02 Conditions Subsequent…………………………………………………………….29
\nSECTION 3.03 Conditions Precedent to All Purchases and Reinvestments………………………………29<\/p>\n
ARTICLE IV. REPRESENTATIONS AND WARRANTIES<\/p>\n
SECTION 4.01 Representations and Warranties of the Seller and the Collection Agent………………….30<\/p>\n
ARTICLE V. COVENANTS<\/p>\n
SECTION 5.01 Covenants of the Seller and the Collection Agent…………………………………….35<\/p>\n
ARTICLE VI. ADMINISTRATION AND COLLECTION<\/p>\n
SECTION 6.01 Designation of Collection Agent……………………………………………………42
\nSECTION 6.02 Duties of Collection Agent………………………………………………………..42
\nSECTION 6.03 Rights of the Administrative Agent…………………………………………………44
\nSECTION 6.04 Responsibilities of the Seller…………………………………………………….45
\nSECTION 6.05 Further Actions Evidencing Purchases……………………………………………….45
\nSECTION 6.06 Collection Agent Fee……………………………………………………………..46<\/p>\n
ARTICLE VII. EVENTS OF TERMINATION<\/p>\n
i<\/p>\n
SECTION 7.01 Events of Termination…………………………………………………………….46<\/p>\n
ARTICLE VIII. INDEMNIFICATION<\/p>\n
SECTION 8.01 Indemnities by the Seller…………………………………………………………50
\nSECTION 8.02 Contribution…………………………………………………………………….52<\/p>\n
ARTICLE IX. THE ADMINISTRATIVE AGENT<\/p>\n
SECTION 9.01 Authorization and Action………………………………………………………….52
\nSECTION 9.02 UCC Filings……………………………………………………………………..53
\nSECTION 9.03 Administrative Agent’s Reliance, Etc……………………………………………….53
\nSECTION 9.04 CIBC and Affiliates………………………………………………………………54
\nSECTION 9.05 Purchasers’ Purchase Decisions…………………………………………………….54
\nSECTION 9.06 Successor Administrative Agent…………………………………………………….54<\/p>\n
ARTICLE X. ASSIGNMENT OF RECEIVABLE INTERESTS<\/p>\n
SECTION 10.01 Assignment………………………………………………………………………55
\nSECTION 10.02 Effects of Assignment…………………………………………………………….55<\/p>\n
ARTICLE XI. MISCELLANEOUS<\/p>\n
SECTION 11.01 Amendments, Etc………………………………………………………………….56
\nSECTION 11.02 Notices, Etc…………………………………………………………………….56
\nSECTION 11.03 Assignability; Termination………………………………………………………..57
\nSECTION 11.04 Costs, Expenses and Taxes…………………………………………………………57
\nSECTION 11.05 No Proceedings…………………………………………………………………..58
\nSECTION 11.06 Confidentiality………………………………………………………………….58
\nSECTION 11.07 No Recourse……………………………………………………………………..58
\nSECTION 11.08 Governing Law; Execution in Counterparts……………………………………………58
\nSECTION 11.09 Construction of Agreement…………………………………………………………59
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
ii<\/p>\n
SCHEDULES<\/p>\n
SCHEDULE I – Lock-Box Banks<\/p>\n
SCHEDULE II – Depositary Banks<\/p>\n
SCHEDULE III – Concentration Banks<\/p>\n
SCHEDULE IV – Credit and Collection Policy<\/p>\n
SCHEDULE V – Originators<\/p>\n
SCHEDULE VI – Georgia-Pacific’s Interests in Originators<\/p>\n
SCHEDULE VII – Defaulted Receivables<\/p>\n
SCHEDULE VIII – Agreed Procedures<\/p>\n
EXHIBITS<\/p>\n
EXHIBIT A – Form of Investor Report<\/p>\n
EXHIBIT B – Form of Lock-Box Agreement<\/p>\n
EXHIBIT C – Form of Transfer Agreement<\/p>\n
EXHIBIT D – Form of Assignment Agreement<\/p>\n
EXHIBIT E – Form of Consent and Acknowledgment<\/p>\n
EXHIBIT F – Form of Depositary Notice<\/p>\n
EXHIBIT G – Form of Concentration Notice<\/p>\n
iii<\/p>\n
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of October
\n13, 1999 among G-P Receivables, Inc., a Delaware corporation (the “Seller”),
\nGEORGIA-PACIFIC CORPORATION, a Georgia corporation (“Georgia-Pacific”), ASSET
\nSECURITIZATION COOPERATIVE CORPORATION (“ASCC”), CORPORATE ASSET FUNDING
\nCOMPANY, INC. (“CAFCO”) and FALCON ASSET SECURITIZATION CORPORATION (“Falcon”)
\n(each of ASCC, CAFCO, Falcon and their respective successors and permitted
\nassigns, individually, a Purchaser, and, collectively, the “Purchasers”), and
\nCANADIAN IMPERIAL BANK OF COMMERCE (“CIBC”), as agent (the “Administrative
\nAgent”) for the Purchasers. Unless defined elsewhere herein, capitalized terms
\nused in this Agreement shall have the meanings assigned to such terms in Article
\nI hereof.<\/p>\n
ARTICLE I.
\n DEFINITIONS<\/p>\n
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the
\nfollowing terms shall have the following meanings (such meanings to be equally
\napplicable to both the singular and plural forms of the terms defined):<\/p>\n
“Adjusted LIBOR Rate” means, with respect to a Purchaser for any Fixed
\nPeriod, the rate per annum obtained by dividing (a) the arithmetic average
\n(rounded upwards, if necessary, to the nearest multiple of one-sixteenth of one
\npercent per annum) of (i) the offered rates for deposits in United States
\ndollars which appear on the display designated as page “LIBO” (or any successor
\npage quoting the offered rates for United States dollars in the London interbank
\nmarket) on the Reuter Monitor Money Rates Service, or (ii) if such rates are not
\nobtainable from the Reuter Monitor Money Rates Service, the respective rates
\nnotified to the Purchaser by each of the Reference Banks as the rate at which it
\nwould offer deposits in United States dollars to prime banks in the London
\ninterbank market, in either case for a period equal to such Fixed Period as such
\nPurchaser shall select and in an amount comparable to the aggregate amount of
\nCapital of the Receivable Interest to be funded or maintained at or about 11:00
\na.m. (London time) on the second Business Day before (and for value on) the
\nfirst day of such period by (b) a percentage equal to (i) 100% minus (ii) the
\nEurodollar Reserve Percentage for such Fixed Period.<\/p>\n
“Administrative Priority” means an administrative priority granted
\nunder Section 364(a) of the Bankruptcy Code.<\/p>\n
“Adverse Claim” means a lien, security interest, claim or other charge
\nor encumbrance, or any other type of preferential arrangement.<\/p>\n
“Affiliate” means, as to any Person, any other Person that, directly or
\nindirectly, is in control of, is controlled by or is under common control with
\nsuch Person or is a director or officer of such Person.<\/p>\n
“Affiliated Obligor” means any Obligor that is an Affiliate of another
\nObligor.<\/p>\n
“Aggregate Capital” means, at the time of any determination thereof
\nwith respect to a Purchaser, the sum of the Capital for all Receivable Interests
\nof such Purchaser.<\/p>\n
“Assignment” has the meaning specified in Section 10.01(a).<\/p>\n
“Average Maturity” means, on any day, that period (expressed in days)
\nequal to the weighted average maturity of the Pool Receivables, as calculated by
\nthe Collection Agent and as set forth in the most recent Investor Report;
\nprovided, however, that if any Purchaser shall reasonably disagree with any such
\ncalculation, the Purchasers may recalculate the Average Maturity with respect to
\nsuch day (which calculation shall be conclusive absent demonstrative error).<\/p>\n
“Bankruptcy Code” means Title 11 of the United States Code (11
\nU.S.C.ss.101 et seq.), as amended from time to time, or any successor statute.<\/p>\n
“Bankrupt Receivable” means a Receivable the Obligor of which has taken
\nany action, or suffered to occur any event, of the type described in Section
\n7.01(i).<\/p>\n
“Base Rate” means, for any day, the per annum rate of interest
\npublished on such day (or, if not then published, on the most recently preceding
\nday) in The Wall Street Journal as the “Prime Rate.” Changes in the Base Rate
\nshall be effective on each date on which a change in the “Prime Rate” is
\npublished.<\/p>\n
“Business Day” means any day on which banks are not authorized or
\nrequired to close in Chicago, Illinois or New York, New York and, if the
\napplicable Business Day relates to any computation or payment to be made with
\nrespect to the Adjusted LIBOR Rate, any day on which dealings in dollar deposits
\nare carried on in the London interbank market.<\/p>\n
“Capital” of any Receivable Interest owned by a Purchaser means the
\noriginal amount paid by such Purchaser to the Seller for such Receivable
\nInterest at the time of its purchase by such Purchaser pursuant to this
\nAgreement, or such amount divided or combined in accordance with Section 2.07,
\nin each case reduced from time to time by Collections distributed on account of
\nsuch Capital pursuant to Section 2.04; provided, that if such Capital shall have
\nbeen reduced by any distribution and thereafter all or a portion of such
\ndistribution is rescinded or must otherwise be returned for any reason, such
\nCapital shall be increased by the amount of such rescinded or returned
\ndistribution, as though it had not been made; provided, further, that such
\nCapital shall not be reduced for the purposes of this Agreement to the extent
\nand so long as Collections to be used to effect an Optional Reduction or a
\nMandatory Reduction are retained by the Collection Agent (if the Seller or an
\nAffiliate thereof).<\/p>\n
“Capital Lease Obligations” of any Person means the obligations of such
\nPerson to pay rent or other amounts under any lease of (or other arrangement
\nconveying the right to use) real or personal property, or a combination thereof,
\nwhich obligations are required to be classified and accounted for as capital
\nleases on a balance<\/p>\n
2<\/p>\n
sheet of such Person under GAAP, and the amount of such obligations shall be the
\ncapitalized amount thereof determined in accordance with GAAP.<\/p>\n
“Code” means the Internal Revenue Code of 1986, as amended from time to
\ntime.<\/p>\n
“Collection Agent” means at any time the Person (which may include the
\nAdministrative Agent) then authorized pursuant to Article VI to service,
\nadminister and collect Pool Receivables.<\/p>\n
“Collection Agent Fee” has the meaning specified in Section 6.06.<\/p>\n
“Collection Agent Fee Reserve” means, on any date, the sum of (i) 1% of
\nthe Total Aggregate Capital on such date plus (ii) the accrued and unpaid
\nCollection Agent Fee on such date.<\/p>\n
“Collection Delay Period” means 10 days or such other number of days as
\nthe Administrative Agent may select (acting upon the direction of the Required
\nPurchasers) upon three Business Days’ notice to the Seller.<\/p>\n
“Collection Event” means any event which causes Georgia-Pacific’s
\nlong-term unsecured debt rating to be withdrawn or fall below BBB-, in the case
\nof S&P, or Baa3, in the case of Moody’s.<\/p>\n
“Collections” means, with respect to any Pool Receivable, all cash
\ncollections and other cash proceeds in respect of such Pool Receivable,
\nincluding, without limitation, all cash proceeds of Related Security with
\nrespect to such Pool Receivable, and any Collection of such Pool Receivable
\ndeemed to have been received pursuant to Section 2.04(d).<\/p>\n
“Concentration Account” means a concentration account maintained at a
\nConcentration Bank for the purpose of, among other things, receiving the
\nproceeds of Collections initially deposited into Lock-box Accounts and
\nDepositary Accounts.<\/p>\n
“Concentration Bank” means, at any time, any of the banks holding one
\nor more Concentration Accounts (as of the date hereof being those banks
\nspecified in Schedule III hereof).<\/p>\n
“Concentration Limit” means, at any time, for any Obligor, 3.33% of the
\nTotal Aggregate Capital outstanding at such time, or such other amount (a
\n“Special Concentration Limit”) for such Obligor designated by the Administrative
\nAgent in a writing delivered to the Seller at the instruction of all of the
\nPurchasers; provided, that in the case of an Obligor with any Affiliated
\nObligor, the Concentration Limit shall be calculated as if such Obligor and such
\nAffiliated Obligor are one Obligor; provided, further, that the Administrative
\nAgent (acting upon the instructions of any Purchaser) may, upon not less than
\nthree Business Days’ notice to the Seller, cancel any Special Concentration
\nLimit.<\/p>\n
3<\/p>\n
“Concentration Notice” means a notice, in substantially the form of
\nExhibit G, from the Seller or Originator to a Concentration Bank.<\/p>\n
“Consent and Acknowledgment” means the agreement, in substantially the
\nform attached hereto as Exhibit E, by each Originator in favor of the
\nPurchasers, the Secondary Purchasers and the Seller pursuant to which such
\nOriginator consents to and acknowledges the transactions contemplated hereby.<\/p>\n
“Contract” means an agreement between an Originator and an Obligor,
\nsubstantially in a form permitted by the Credit and Collection Policy, pursuant
\nto or under which such Obligor shall be obligated to pay for merchandise, goods,
\ninsurance or services from time to time.<\/p>\n
“Credit and Collection Policy” means those receivables credit and
\ncollection policies and practices of the Originators in effect on the date
\nhereof and approved by the Purchasers, summarized on Schedule IV hereto, as the
\nsame may be modified in strict compliance with this Agreement.<\/p>\n
“Current Default Ratio” means, at the time any determination thereof is
\nto be made, a fraction, expressed as a percentage, the numerator of which is the
\naggregate Outstanding Balance of all Pool Receivables that were Defaulted
\nReceivables at such time and the denominator of which is the aggregate
\nOutstanding Balance of all Pool Receivables at such time.<\/p>\n
“Dealer Fee” means, with respect to a Purchaser, any and all
\ncommissions of placement agents and commercial paper dealers in respect of Notes
\nissued by such Purchaser to fund the purchase or maintenance by such Purchaser
\nof any Receivable Interest.<\/p>\n
“Debt” of any Person means, without duplication, (a) all obligations of
\nsuch Person for borrowed money, (b) all obligations of such Person evidenced by
\nbonds, debentures, notes or similar instruments, (c) all obligations of such
\nPerson under conditional sale or other title retention agreements relating to
\nproperty acquired by such Person, (d) all obligations of such Person in respect
\nof the deferred purchase price of property or services (excluding accounts
\npayable incurred in the ordinary course of business), (e) all Debt of others
\nsecured by (or for which the holder of such Debt has an existing right,
\ncontingent or otherwise, to be secured by) any Lien on property owned or
\nacquired by such Person, whether or not the Debt secured thereby has been
\nassumed, (f) all Guarantees by such Person of Debt of others, (g) all Capital
\nLease Obligations of such Person, (h) all obligations, contingent or otherwise,
\nof such Person as an account party in respect of letters of credit and letters
\nof guaranty, (i) liabilities in respect of unfunded vested benefits under plans
\ncovered by Title IV or ERISA and (j) all obligations, contingent or otherwise,
\nof such Person in respect of bankers’ acceptances. The Debt of any Person shall
\ninclude the Debt of any other entity (including any partnership in which such
\nPerson is a general partner) to the extent such Person is liable therefor as a
\nresult of such Person’s ownership interest in or other relationship with such
\nentity, except to the extent the terms of such Debt provide that such Person is
\nnot liable therefor.<\/p>\n
4<\/p>\n
“Default Ratio” means, at the time any determination thereof is to be
\nmade, a fraction, expressed as a percentage, the numerator of which is 1\/12 of
\nthe aggregate Outstanding Balance of all Pool Receivables that were Defaulted
\nReceivables on the last Business Day of the month most recently ended and the
\nlast Business Day of each of the immediately preceding eleven (11) calendar
\nmonths or that would have been Defaulted Receivables on such last Business Days
\nhad they not been written off the books of the Seller or an Originator during
\nsuch months (such Outstanding Balances of such Defaulted Receivables for the
\neleven (11) calendar months immediately preceding the date hereof as set forth
\non Schedule VII hereto), and the denominator of which is 1\/12 of the aggregate
\nOutstanding Balance of all Pool Receivables on the last Business Day of the
\nmonth most recently ended and the last Business Day of each of the immediately
\npreceding eleven (11) calendar months (such Outstanding Balances for the eleven
\n(11) calendar months immediately preceding the date hereof as set forth on
\nSchedule VII hereto).<\/p>\n
“Defaulted Receivable” means a Receivable:<\/p>\n
(i) as to which any payment, or part thereof, remains unpaid for more
\n than 90 days from the invoice date of such Receivable;<\/p>\n
(ii) which is a Bankrupt Receivable and (a) is not entitled to the
\n benefit of an Administrative Priority (regardless of the Outstanding
\n Balance of such Receivable) or (b) the Outstanding Balance of which,
\n together with all other Bankrupt Receivables of the same Obligor, is
\n greater than $500,000 (whether or not one or more of such Bankrupt
\n Receivables is entitled to an Administrative Priority); or<\/p>\n
(iii) which, consistent with the Credit and Collection Policy, would be
\n written off the Seller’s or an Originator’s books as uncollectible.<\/p>\n
“Delinquency Ratio” means, at the time any determination thereof is to
\nbe made, the ratio, expressed as a percentage, computed by dividing (i) the
\naggregate Outstanding Balance of all Pool Receivables that were Delinquent
\nReceivables at such time by (ii) the aggregate Outstanding Balance of all Pool
\nReceivables at such time.<\/p>\n
“Delinquent Receivable” means a Receivable as to which any payment, or
\npart thereof, remains unpaid for 60 days or more from the original invoice date
\nthereof.<\/p>\n
“Depositary Account” means a depositary account maintained at a
\nDepositary Bank, the primary purpose of which is to receive the proceeds of
\nCollections from the Seller or an Originator.<\/p>\n
“Depositary Bank” means, at any time, any of the banks holding one or
\nmore Depositary Accounts (as of the date hereof being those banks specified on
\nSchedule II hereof).<\/p>\n
“Depositary Notice” means a notice, in substantially the form of
\nExhibit F, from the Seller or Originator to a Depositary Bank.<\/p>\n
5<\/p>\n
“Designated Obligor” means, at any time, each Obligor; provided,
\nhowever, that any Obligor shall, upon not less than three Business Days’ notice
\ngiven to the Seller by the Administrative Agent at the instruction of any
\nPurchaser, cease to be a Designated Obligor.<\/p>\n
“Dilution Horizon Ratio” means, as of the last day of any month, a
\nfraction, expressed as a percentage, the numerator of which is the aggregate
\nOutstanding Balance of all Pool Receivables as of such day, and the denominator
\nof which is the aggregate Outstanding Balance of all Eligible Receivables as of
\nsuch day.<\/p>\n
“Dilution Ratio” means, as of any date of determination, a fraction,
\nexpressed as a percentage, the numerator of which is the aggregate amount of
\nDilutions for the most recently completed calendar month and the denominator of
\nwhich is the aggregate sales of the Originators for the prior calendar month.<\/p>\n
“Dilution Reserve” means, as of any date, the product of (1) the
\nquotient of (x) the Dilution Reserve Percentage on such date and (y) 1 minus
\nsuch Dilution Reserve Percentage, and (2) the Total Aggregate Capital on such
\ndate.<\/p>\n
“Dilution Reserve Percentage” means, as of any date of determination,
\nthe amount equal to<\/p>\n
[(2.0 x ADR) + {(HDR – ADR) x (HDR\/ADR)}] x DHR<\/p>\n
where:<\/p>\n
ADR = the average Dilution Ratio for the then most recently completed
\ntwelve-month period.<\/p>\n
HDR = the highest Dilution Ratio occurring during any of the twelve
\nmonths then most recently completed.<\/p>\n
DHR = the Dilution Horizon Ratio as of such date.<\/p>\n
“Dilutions” means the aggregate amount of any reductions and
\ncancellations of Receivables which have been reduced or canceled, respectively,
\nfor any reason other than that (1) the Obligors have made payments thereon or
\n(2) the Seller has charged-off such Receivables for credit reasons in accordance
\nwith the Credit and Collection Policy.<\/p>\n
“Eligible Receivable” means, at any time, a Receivable:<\/p>\n
(i) the Obligor of which is not an Affiliate of any of the parties
\n hereto;<\/p>\n
(ii) which, at the time of the initial creation of a Receivable
\n Interest therein under this Agreement is not a Defaulted Receivable;<\/p>\n
(iii) which is an obligation representing all or part of the sales
\n price of merchandise, insurance and services within the meaning of Section
\n 3(c)(5) of the<\/p>\n
6<\/p>\n
Investment Company Act of 1940, as amended, and the nature of which is such
\n that its purchase with the proceeds of notes would constitute a “current
\n transaction” within the meaning of Section 3(a)(3) of the Securities Act of
\n 1933, as amended;<\/p>\n
(iv) which is an “account” within the meaning of Section 9-106 of the
\n UCC of the applicable jurisdiction governing the perfection of the interest
\n in such Receivable created by a Receivable Interest;<\/p>\n
(v) which arises in the ordinary course of an Originator’s business
\n under a Contract which, together with such Receivable, is in full force and
\n effect and constitutes the legal, valid and binding obligation of the
\n Obligor of such Receivable and is not subject to any known dispute, offset,
\n counterclaim or defense whatsoever or any Adverse Claim other than those of
\n the Purchasers, the Secondary Purchasers and the Administrative Agent;<\/p>\n
(vi) which, together with the Contract related thereto, does not
\n contravene or violate in any respect any laws, rules or regulations
\n applicable thereto (including, without limitation, laws, rules and
\n regulations relating to usury, truth in lending, fair credit billing, fair
\n credit reporting, equal credit opportunity, fair debt collection practices
\n and privacy) (other than any contravention or violation which would not
\n have a material adverse effect on the collectibility of such Receivable in
\n the full Outstanding Balance thereof) and with respect to which no party to
\n the Contract related thereto is in violation of any such law, rule or
\n regulation in any respect (other than any contravention or violation which
\n would not have a material adverse effect on the collectibility of such
\n Receivable in the full Outstanding Balance thereof);<\/p>\n
(vii) which satisfies all applicable requirements of the Credit and
\n Collection Policy;<\/p>\n
(viii) as to which, at the time of the initial creation of a Receivable
\n Interest therein under this Agreement, the Administrative Agent, at the
\n instruction of any Purchaser, has not notified the Seller that such
\n Receivable (or class of Receivables) is no longer acceptable for purchase
\n by the Purchasers hereunder;<\/p>\n
(ix) as to which all right, title and interest of an Originator in such
\n Receivable was transferred to the Seller from such Originator pursuant to a
\n Transfer Agreement;<\/p>\n
(x) which is denominated and payable in United States dollars in the
\n United States;<\/p>\n
(xi) the Obligor of which is not the Obligor of any Receivable which
\n has been referred to the collection department of the Seller or an
\n Originator;<\/p>\n
7<\/p>\n
(xii) as to which the Seller has good and marketable title thereto,
\n freely assignable by the Seller to the Administrative Agent for the benefit
\n of the Purchasers;<\/p>\n
(xiii) which, if a Bankrupt Receivable, is entitled to the benefit of
\n an Administrative Priority and the Outstanding Balance of which, together
\n with all other Bankrupt Receivables of the same Obligor entitled to the
\n benefit of an Administrative Priority, is equal to or less than $500,000;
\n and<\/p>\n
(xiv) the Obligor of which is a U.S. resident.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974, as
\namended from time to time, and the regulations promulgated and rulings issued
\nthereunder.<\/p>\n
“ERISA Affiliate” means any trade or business (whether or not
\nincorporated) that is treated as a single employer with the Seller under Section
\n414 of the Code.<\/p>\n
“Eurodollar Reserve Percentage” for any Purchaser and for any Fixed
\nPeriod means the reserve percentage applicable to such Purchaser, its Related
\nSecondary Purchaser or the bank or banks providing liquidity, back-up purchase
\nor credit support for the Purchaser during such Fixed Period under regulations
\nissued from time to time by the Board of Governors of the Federal Reserve System
\n(or any successor) (or, if more than one such percentage shall be so applicable,
\nthe weighted daily averages of such percentages for those days in such Fixed
\nPeriod during which any such percentage shall be so applicable) for determining
\nthe maximum reserve requirement of such Purchaser, its Related Secondary
\nPurchaser or the bank or banks providing liquidity, back-up purchase or credit
\nsupport for the Purchaser (including, but not limited to, any emergency,
\nsupplemental or other marginal reserve requirement) with respect to liabilities
\nconsisting of or including Eurocurrency liabilities (as that term is defined in
\nRegulation D of the Board of Governors of the Federal Reserve System as in
\neffect from time to time) having a term equal to such Fixed Period.<\/p>\n
“Event of Termination” has the meaning specified in Article VII.<\/p>\n
“Facility Termination Date” has the meaning specified in Section
\n2.01(i).<\/p>\n
“Fee Letter” means that certain letter agreement among the Seller, the
\nPurchasers and the Secondary Purchasers dated October 13, 1999, as the same may,
\nfrom time to time, be amended, modified or supplemented.<\/p>\n
“Fixed Period” means, with respect to any Receivable Interest in
\nrespect of which Yield is computed by reference to the Adjusted LIBOR Rate, a
\nperiod from one to and including 30 days, as a Purchaser, after consultation
\nwith the Seller, shall select, provided, that (i) any Fixed Period (other than
\nof one day) which would otherwise end on a day which is not a Business Day shall
\nbe extended to the next succeeding Business Day, except that if such extension
\nwould cause the last day of such Fixed Period to occur<\/p>\n
8<\/p>\n
in the next succeeding month, the last day of such Fixed Period shall occur on
\nthe immediately preceding Business Day; and (ii) in the case of any Fixed Period
\nfor any Receivable Interest which commences before the Facility Termination Date
\nfor such Receivable Interest and would otherwise end on a date occurring after
\nsuch Facility Termination Date, such Fixed Period shall end on such Facility
\nTermination Date.<\/p>\n
“GAAP” means generally accepted accounting principles in the United
\nStates of America.<\/p>\n
“Government Obligor” means any Obligor that is an agency, a department,
\nan instrumentality or a political subdivision of the United States or of any
\nstate or local government.<\/p>\n
“Government Obligor Concentration Limit” means 5% or such other
\npercentage as shall be designated by the Administrative Agent in a writing
\ndelivered to the Seller at the instruction of the Required Purchasers.<\/p>\n
“Guarantee” of or by any Person (the “guarantor”) means any obligation,
\ncontingent or otherwise, of the guarantor guaranteeing or having the economic
\neffect of guaranteeing any Debt or other obligation of any other Person (the
\n“primary obligor”) in any manner, whether directly or indirectly, and including
\nany obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
\nadvance or supply funds for the purchase or payment of) such Debt or other
\nobligation or to purchase (or to advance or supply funds for the purchase of )
\nany security for the payment thereof, (b) to purchase or lease property,
\nsecurities or services for the purpose of assuring the owner of such Debt or
\nother obligation of the payment thereof or (c) to maintain working capital,
\nequity capital or any other financial statement condition or liquidity of the
\nprimary obligor so as to enable the primary obligor to pay such Debt or other
\nobligation; provided, that the term Guarantee shall not include endorsements for
\ncollection or deposit in the ordinary course of business. The amount of any
\nGuarantee shall be deemed to be an amount equal to the stated or determinable
\namount of the primary obligation in respect of which such Guarantee is made or,
\nif not stated or determinable, the maximum reasonably anticipated liability in
\nrespect thereof determined in good faith by the guarantor (assuming the
\nguarantor is required to perform thereunder).<\/p>\n
“Investor Rate” for any day in a Settlement Period for any Receivable
\nInterest means<\/p>\n
(a) the weighted average of<\/p>\n
(i) the weighted average, determined on such day, of the sum of (a) the
\n discount rates on all Notes of such Purchaser issued at a discount
\n outstanding on such day (other than Notes the proceeds of which are used by
\n such Purchaser to (x) purchase receivables (other than the Receivables), or
\n extend financing secured thereby, at a fixed interest rate or (y) conduct
\n any arbitrage activities of such Purchaser) plus (b) the Dealer Fee with
\n respect to such Purchaser plus (c) other costs associated with funding
\n small or odd-lot amounts with respect to all receivable purchase or loan
\n facilities which are funded by Notes of such<\/p>\n
9<\/p>\n
Purchaser (other then Notes the proceeds of which are used by such
\n Purchaser for the purposes described in clauses (x) and (y) above),
\n converted to an annual yield-equivalent rate on the basis of a 360-day
\n year;<\/p>\n
(ii) the weighted average, determined on such day, of the sum of (a)
\n the annual interest rates payable on all interest-bearing Notes of such
\n Purchaser outstanding on such day (other than the Notes the proceeds of
\n which are used by such Purchaser for the purposes described in clauses (x)
\n and (y) of paragraph (i) above) plus (b) the Dealer Fee with respect to
\n such Purchaser plus (c) other costs associated with funding small or
\n odd-lot amounts with respect to all receivable purchase or loan facilities
\n which are funded by Notes of such Purchaser (other then Notes the proceeds
\n of which are used by such Purchaser for the purposes described in clauses
\n (x) and (y) in paragraph (i) above), on the basis of a 360-day year; and<\/p>\n
(iii) the weighted average, determined on such day, of the Adjusted
\n LIBOR Rate on such day, plus 1.25%, to the extent that such Purchaser has
\n any borrowings outstanding under a Liquidity Facility on such day or such
\n Purchaser is the provider of such Liquidity Facility, on the basis of a
\n 360-day year; and<\/p>\n
(b) In addition to the foregoing, if the Seller shall request any
\nPurchase (other than a reinvestment Purchase) during any period of time
\ndetermined by the Administrative Agent in its sole discretion to result in
\nincrementally higher costs applicable to such Purchase, the Capital associated
\nwith any such Purchase shall, during such period, be deemed to be funded by a
\nPurchaser in a special pool (which may include capital associated with other
\nreceivable purchase or loan facilities) for purposes of determining such
\nadditional costs.<\/p>\n
“Investor Report” means a report, in substantially the form of Exhibit
\nA hereto (appropriately completed), furnished by the Collection Agent to each
\nPurchaser and the Administrative Agent pursuant to Section 6.02(g) hereof.<\/p>\n
“Investor Report Date” means, with respect to each Settlement Period,
\nthe 23rd day of the month immediately following a Settlement Date (or if such
\nday is not a Business Day, the next succeeding Business Day) or such other date
\nor dates as shall be notified to the Seller from time to time by the
\nAdministrative Agent at the direction of the Required Purchasers.<\/p>\n
“Liquidation Day” means, for any Receivable Interest, (i) each day
\nduring a Settlement Period for such Receivable Interest on which the conditions
\nset forth in Section 3.02 are not satisfied (or expressly waived by the
\nPurchasers), provided such conditions remain unsatisfied (or are not expressly
\nwaived by the Purchasers) during such Settlement Period, or (ii) each day which
\noccurs on or after the Reinvestment Termination Date for such Receivable
\nInterest.<\/p>\n
“Liquidity Facilities” means each of the committed loan facilities,
\nlines of credit and other financial accommodations available to a Purchaser to
\nprovide liquidity in support of such Purchaser’s Notes and medium-term notes.<\/p>\n
10<\/p>\n
“Liquidation Fee” means, for any Purchaser and for any Settlement
\nPeriod during which a Liquidation Day occurs, the amount, if any, by which (i)
\nthe additional Yield (calculated without taking into account any Liquidation Fee
\nor any shortened duration of a Fixed Period pursuant to clause (ii) of the
\ndefinition thereof) which would have accrued during the remainder of such
\nSettlement Period on all reductions of Capital of the Receivable Interest during
\nsuch Settlement Period exceeds (ii) the income received by such Purchaser’s
\ninvesting the proceeds of such reductions of Capital.<\/p>\n
“Liquidation Yield Reserve” means, on any date, an amount equal to the
\nproduct of (1) the Total Aggregate Capital on such date, (2) the Adjusted LIBOR
\nRate for a 30-day Fixed Period to commence on such date multiplied by 1.3 and
\n(3) a fraction having the sum of the Average Maturity plus the Collection Delay
\nPeriod (each as in effect at such date) as its numerator and 360 as its
\ndenominator.<\/p>\n
“Lock-Box Account” means a lock-box account maintained at a Lock-Box
\nBank, the primary purpose of which is to receive Collections.<\/p>\n
“Lock-Box Agreement” means an agreement, in substantially the form of
\nExhibit B, among an Originator, the Administrative Agent and a Lock-Box Bank.<\/p>\n
“Lock-Box Bank” means, at any time, any of the banks holding one or
\nmore Lock-Box Accounts (as of the date hereof being those specified on Schedule
\nI hereof).<\/p>\n
“Lock-Box Notice” means a notice, in substantially the form of
\nAttachment A to Exhibit B, from the Seller or an Originator to any Lock-Box
\nBank.<\/p>\n
“Loss Reserve” means, on any date, the product of (a) a fraction
\nexpressed as a percentage, the numerator of which will equal 300% of the greater
\nof (i) the Concentration Limit for any Obligor (other than any Special
\nConcentration Limit) and (ii) the Default Ratio for the 12-month period
\nimmediately preceding such date and the denominator of which will equal 1 minus
\nthe numerator and (b) the Total Aggregate Capital on such date.<\/p>\n
“Loss-to-Liquidation Ratio” means, at the time of any determination
\nthereof, a fraction, expressed as a percentage, the numerator of which is equal
\nto 1\/3 of the aggregate Outstanding Balance (net of recoveries) of all
\nReceivables that were written-off of the books of the Seller or an Originator as
\nuncollectible in accordance with the Credit and Collection Policy during the
\nmonth most recently ended and during the immediately preceding two calendar
\nmonths and the denominator of which is equal to 1\/3 of the aggregate Collections
\nreceived during the month most recently ended and during the immediately
\npreceding two calendar months less the aggregate amount of Collections deemed to
\nhave been received during such period pursuant to Section 2.04(d).<\/p>\n
“Mandatory Reduction” means the required reduction of the Aggregate
\nCapital of a Purchaser as a result of the occurrence of a Mandatory Reduction
\nDay.<\/p>\n
11<\/p>\n
“Mandatory Reduction Amount” means, with respect to the Receivable
\nInterests of any Purchaser on any Mandatory Reduction Day, the lowest dollar
\namount of a reduction in the Aggregate Capital of such Purchaser which is
\nnecessary to cause such Receivable Interests (if greater than the Pro Rata Share
\nof such Purchaser to reduce to an amount equal to the Pro Rata Share of such
\nPurchaser.<\/p>\n
“Mandatory Reduction Day” means each day during a Settlement Period on
\nwhich the Receivable Interests of a Purchaser exceed an amount equal to the Pro
\nRata Share of such Purchaser.<\/p>\n
“Member” means a Person who holds membership in ASCC other than as an
\nassociate member.<\/p>\n
“Moody’s” means Moody’s Investors Service, Inc.<\/p>\n
“Net Receivables Pool Balance” means, at any time with respect to any
\nReceivables Pool, the Outstanding Balance of Eligible Receivables then in the
\nReceivables Pool reduced by the sum of (i) the Outstanding Balance of such
\nEligible Receivables that have become Defaulted Receivables, (ii) the aggregate
\namount by which the Outstanding Balance of Eligible Receivables (other than
\nDefaulted Receivables) of each Obligor then in the Receivables Pool exceeds the
\nConcentration Limit or Special Concentration Limit for such Obligor, and (iii)
\nthe result of the aggregate amount by which the Outstanding Balance of Eligible
\nReceivables (other than Defaulted Receivables) of all Government Obligors then
\nin the Receivables Pool exceeds the product of (A) the Government Obligor
\nConcentration Limit and (B) the Outstanding Balance of the Eligible Receivables
\nthen in the Receivables Pool, less the amount specified in clause (ii) with
\nrespect to any Government Obligor.<\/p>\n
“Notes” means, with respect to a Purchaser, commercial paper notes or
\nother short-term promissory notes issued by such Purchaser in the United States
\ncommercial paper market from time to time.<\/p>\n
“Obligor” means a Person obligated to make payments pursuant to a
\nContract.<\/p>\n
“Optional Reduction” means the election of the Seller to reduce the
\nTotal Aggregate Capital by directing the Collection Agent and the Purchasers to
\nterminate temporarily the reinvestment of Collections.<\/p>\n
“Optional Reduction Amount” means the dollar amount specified in a
\nnotice given by the Seller in accordance with Section 2.01(c) hereof as being
\nthe amount by which the Seller would like to reduce temporarily the Total
\nAggregate Capital.<\/p>\n
“Optional Reduction Day” means for each Receivable Interest, each day
\nduring a Settlement Period on which a portion of the Collections which would
\nordinarily be reinvested as a return of the Capital thereof are paid to the
\nPurchaser or held by the Collection Agent for the account of such Purchaser in
\norder to effect the reduction of the Capital with respect thereto.<\/p>\n
12<\/p>\n
“Optional Reduction Effective Date” means the day on which the
\nPurchasers and the Collection Agent shall commence the temporary termination of
\nreinvestments of Collections pursuant to Section 2.01(c) hereof.<\/p>\n
“Originator” means Georgia-Pacific and any direct or indirect
\nSubsidiary of Georgia-Pacific party to a Transfer Agreement and approved by the
\nPurchasers (as of the date hereof being those subsidiaries specified on Schedule
\nV hereof).<\/p>\n
“Outstanding Balance” of any Receivable at any time means the then
\noutstanding principal balance thereof.<\/p>\n
“Person” means an individual, partnership, corporation (including a
\nbusiness trust), joint stock company, trust, unincorporated association, joint
\nventure or other entity, or a government or any political subdivision or agency
\nthereof.<\/p>\n
“Pool Receivable” means a Receivable in a Receivables Pool.<\/p>\n
“Potential Termination Event” means an event which, with the passage of
\ntime or notice or both, would constitute an Event of Termination.<\/p>\n
“Pro Rata Share” means, for each Purchaser other than ASCC, 33.333333%,
\nand, for ASCC, 33.333334%, or such other percentage for such Purchaser as shall
\nresult from any reallocation in accordance with Section 2.01(d).<\/p>\n
“Provisional Liquidation Day” means each day that would be a
\nLiquidation Day but for the proviso in clause (i) of the definition of
\n“Liquidation Day.”<\/p>\n
“Purchase” has the meaning specified in Section 2.01(a).<\/p>\n
“Purchase Limit” means, for all Purchasers in the aggregate, an amount
\nequal to $750,000,000 initially, or such lesser amount as shall reflect any
\nreduction pursuant to Section 2.01(b), and for each Purchaser, its Pro Rata
\nShare of such aggregate amount. References to the unused portion of the Purchase
\nLimit shall mean, at any time, the Purchase Limit in effect at such time, less
\nthe sum of the Total Aggregate Capital under this Agreement and the “Total
\nAggregate Capital” under the Secondary Purchase Agreement. Furthermore, on any
\nday on which the Seller reduces the unused portion of (or terminates) the
\n“Commitment” under the Secondary Purchase Agreement, the Purchase Limit
\nautomatically shall reduce by the same amount (or so terminate).<\/p>\n
“Receivable” means the indebtedness of any Obligor under a Contract
\n(other than a Contract with respect to the sale by an Originator of gypsum at
\nthe minehead) and includes the right to payment of any interest or finance
\ncharges and other obligations of such Obligor with respect thereto.<\/p>\n
“Receivable Interest” means, at any time, an undivided percentage
\nownership interest of a Purchaser in (i) all then outstanding Pool Receivables
\narising prior to the time of the most recent computation or recomputation of
\nsuch undivided<\/p>\n
13<\/p>\n
percentage interest pursuant to Section 2.03, (ii) all Related Security with
\nrespect to such Pool Receivables, and (iii) all Collections with respect to, and
\nother proceeds of, such Pool Receivables. Such undivided percentage interest
\nshall be a fraction, expressed as a percentage, the numerator of which is the
\nsum of (i) the Capital of such Receivable Interest at the time of computation
\nand (ii) a number equal to the product of (x) the Reserve and (y) a fraction,
\nexpressed as a percentage, the numerator of which is the Capital of such
\nReceivable Interest, and the denominator of which is the Total Aggregate
\nCapital, and the denominator of which is the Net Receivables Pool Balance at the
\ntime of computation. Each Receivable Interest shall be determined from time to
\ntime pursuant to the provisions of Section 2.03.<\/p>\n
“Receivables Pool” means at any time the aggregation of each then
\noutstanding Receivable in respect of which the Obligor is a Designated Obligor
\nat such time or was a Designated Obligor on the date of the initial creation of
\nan interest in such Receivable under this Agreement.<\/p>\n
“Records” means, with respect to any Receivable, all Contracts and
\nother documents, books, records and other information (including, without
\nlimitation, computer programs, tapes, disks, punch cards, data processing
\nsoftware and related property and rights) relating to such Receivable and the
\nrelated Obligor.<\/p>\n
“Reference Banks” means Canadian Imperial Bank of Commerce, Citibank,
\nN.A. and Bank One, NA (Chicago Office), or such other banks as the Purchasers
\nshall designate with the consent of the Seller.<\/p>\n
“Reinvestment Termination Date” means, with respect to any Receivable
\nInterest, that Business Day which the Administrative Agent at the instruction of
\nany Purchaser so designates by notice to the Seller as being the first day on
\nwhich reinvestments will not be made with respect to such Receivable Interest.<\/p>\n
“Related Secondary Purchaser” means, with respect to each Purchaser set
\nforth below, the Person set forth opposite its name.<\/p>\n
ASCC Canadian Imperial Bank of Commerce
\n CAFCO Citibank, N.A.
\n Falcon Bank One, NA (Chicago Office)<\/p>\n
“Related Security” means with respect to any Receivable:<\/p>\n
(i) all of the Seller’s interest in any merchandise (including returned
\n merchandise) relating to any sale giving rise to such Receivable;<\/p>\n
(ii) all other security interests or liens and property subject thereto
\n from time to time purporting to secure payment of such Receivable, whether
\n pursuant to the Contract related to such Receivable or otherwise, together
\n with all financing statements describing any collateral securing such
\n Receivable;<\/p>\n
14<\/p>\n
(iii) all guaranties, insurance and other agreements or arrangements of
\n whatever character from time to time supporting or securing payment of such
\n Receivable whether pursuant to the Contract related to such Receivable or
\n otherwise;<\/p>\n
(iv) all Records relating to such Receivable.<\/p>\n
“Required Purchasers” means, at a particular time, the Purchasers, the
\naggregate Purchase Limit of which equals at least 66.666666% of the overall
\nPurchase Limit; provided, that the Purchase Limit for any Purchaser that has
\nbreached a material provision of this Agreement shall be zero for so long as
\nsuch breach has not been cured.<\/p>\n
“Reserve” means, on any date, the sum of (a) the Loss Reserve on such
\ndate, (b) the Liquidation Yield Reserve on such date, (c) the Collection Agent
\nFee Reserve, if any, on such date, and (d) the Dilution Reserve on such date.<\/p>\n
“Responsible Officer” means, as to the Seller and the Originators, any
\nofficer (including, for the purpose of this Agreement, any assistant secretary
\nand any assistant treasurer) of such entity or any person designated in writing
\nby any such officer.<\/p>\n
“S&P” means Standard & Poor’s Rating Services, a division of McGraw
\nHill Companies, Inc., and any successor thereto.<\/p>\n
“Sale Documents” means this Agreement, the Secondary Purchase
\nAgreement, the Transfer Agreement, the Consent and Acknowledgment, each Lock-Box
\nAgreement and the other documents delivered in connection herewith or therewith.<\/p>\n
“Secondary Purchase Agreement” means the Amended and Restated
\nReceivables Purchase Agreement, dated as of the date hereof, among the Seller,
\nGeorgia-Pacific, the Secondary Purchasers and Canadian Imperial Bank of
\nCommerce, as administrative agent, as the same may, from time to time, be
\namended, modified or supplemented.<\/p>\n
“Secondary Purchasers” means collectively Canadian Imperial Bank of
\nCommerce, Citibank, N.A. and Bank One, NA (Chicago Office)<\/p>\n
“Settlement Date” means, the following:<\/p>\n
(a) with respect to any Settlement Period in which the Investor Rate is
\ndetermined in accordance with paragraphs (i) or (ii) of the definition “Investor
\nRate”, the date which is the second Business Day following the end of such
\nSettlement Period;<\/p>\n
(b) with respect to any Settlement Period in which the Purchaser Rate
\nis determined in accordance with paragraph (iii) of the definition “Investor
\nRate”, the last day of such Settlement Period;<\/p>\n
15<\/p>\n
(c) if the Required Purchasers determine, in their sole discretion,
\nthat (i) an Event of Termination or Potential Termination Event has occurred or
\n(ii) a Purchaser’s commercial paper program is being liquidated, each day
\ndesignated as a Settlement Date by the Required Purchasers;<\/p>\n
(d) each Business Day on which a Purchaser’s Investment is reduced in
\naccordance with Section 2.01(b), (c) or (d); and<\/p>\n
(e) any date on which a reduction in the Total Aggregate Capital is
\nrequired to prevent the sum of the Total Aggregate Capital and the “Total
\nAggregate Capital” under the Secondary Purchase Agreement from exceeding the
\nPurchase Limit.<\/p>\n
“Settlement Period” means a period equal to one calendar month,
\nprovided, however, that the first Settlement Period shall commence on the date
\nhereof and terminate on the last day of the calendar month in which such
\nSettlement Period commenced.<\/p>\n
“Solvent” means, when used with respect to any Person, that, as of any
\ndate of determination, (a) the amount of the “present fair saleable value” of
\nthe assets of such Person will, as of such date, exceed the amount of all
\n“liabilities of such Person, contingent or otherwise,” as of such date, as such
\nquoted terms are determined in accordance with applicable federal and state laws
\ngoverning determinations of the insolvency of debtors, (b) the present fair
\nsaleable value of the assets of such Person will, as of such date, be greater
\nthan the amount that will be required to pay the liability of such Person on its
\ndebts as such debts become absolute and matured, (c) such Person will not have,
\nas of such date, an unreasonably small amount of capital with which to conduct
\nits business, and (d) such Person will be able to pay its debts as they mature.
\nFor purposes of this definition, (i) “debt” means liability on a “claim,” and
\n(ii) “claim” means any (x) right to payment, whether or not such a right is
\nreduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
\nunmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
\nright to an equitable remedy for breach of performance if such breach gives rise
\nto a right to payment, whether or not such right to an equitable remedy is
\nreduced to judgment, fixed, contingent, matured or unmatured, disputed,
\nundisputed, secured or unsecured.<\/p>\n
“Subsidiary” means, with respect to any Person, any corporation of
\nwhich more than 50% of the outstanding capital stock having ordinary voting
\npower to elect a majority of the board of directors (or others performing a
\ncomparable function) of such corporation is at the time directly or indirectly
\nowned by such Person, by such Person and one or more other Subsidiaries of such
\nPerson, or by one or more other Subsidiaries of such Person.<\/p>\n
“Termination Date” means the earlier of (i) the Reinvestment
\nTermination Date and (ii) the Facility Termination Date.<\/p>\n
“Total Aggregate Capital” means, at any time of determination, the sum
\nof the Aggregate Capital for the Purchasers.<\/p>\n
16<\/p>\n
“Transfer Agreement” means each agreement, in substantially the form
\nattached hereto as Exhibit C, between the Seller and each Originator pursuant to
\nwhich the Seller will purchase Receivables from the Originators.<\/p>\n
“UCC” means the Uniform Commercial Code as from time to time in effect
\nin the specified jurisdiction.<\/p>\n
“Year 2000 Plan” has the meaning specified in Section 4.01(y).<\/p>\n
“Year 2000 Problem” means, with respect to any Person, the risk that
\ncomputer applications in use by that Person cannot or will not: (a) handle date
\ninformation involving any and all dates before, during and\/or after January 1,
\n2000, including accepting input, providing output and performing date
\ncalculations in whole or in part; (b) operate accurately without interruption on
\nand in respect of any and all dates before, during and\/or after January 1, 2000;
\nand (c) store and provide date input information without creating any ambiguity
\nas to the century.<\/p>\n
“Yield” means for each Receivable Interest for any Settlement Period<\/p>\n
IR x C x ED + LF
\n —
\n 360<\/p>\n
where:<\/p>\n
C = the daily average (calculated at the close of business each
\n day) Capital of such Receivable Interest during such
\n Settlement Period<\/p>\n
IR = Investor Rate for such Receivable Interest for such
\n Settlement Period<\/p>\n
ED = the actual number of days elapsed during such Settlement
\n Period<\/p>\n
LF = the Liquidation Fee, if any, for such Receivable Interest
\n for such Settlement Period;<\/p>\n
provided, that no provision of this Agreement shall require the payment or
\npermit the collection of Yield in excess of the maximum permitted by applicable
\nlaw; and provided, further, that Yield for any Receivable Interest shall not be
\nconsidered paid by any distribution to the extent that at any time all or a
\nportion of such distribution is rescinded or must otherwise be returned for any
\nreason.<\/p>\n
17<\/p>\n
SECTION 1.02 Other Terms. All accounting terms not specifically defined
\nherein shall be construed in accordance with generally accepted accounting
\nprinciples. All terms used in Article 9 of the UCC in the State of New York, and
\nnot specifically defined herein, are used herein as defined in such Article 9.<\/p>\n
ARTICLE II.
\n AMOUNTS AND TERMS OF THE PURCHASES<\/p>\n
SECTION 2.01 Purchase Facility.<\/p>\n
(a) On the terms and conditions hereinafter set forth, each Purchaser
\nmay, in its sole discretion, purchase Receivable Interests from the Seller from
\ntime to time during the period from the date hereof to the Termination Date.
\nEach purchase (each, a “Purchase”) of Receivable Interests with respect to a
\nReceivables Pool requested by the Seller shall be made by the Purchasers
\nelecting to Purchase at such time simultaneously and ratably according to their
\nrespective Pro Rata Shares. Under no circumstances shall a Purchaser make any
\nPurchase if after giving effect to such Purchase, such Purchaser’s Aggregate
\nCapital, together with the Related Secondary Purchaser’s “Aggregate Capital”
\nunder the Secondary Purchase Agreement, would exceed such Purchaser’s Purchase
\nLimit. Notwithstanding anything to the contrary contained herein, until such
\ntime as the parties expressly agree, all Purchases of Receivable Interests
\nhereunder and under the Secondary Purchase Agreement shall be made with respect
\nto a single Receivables Pool.<\/p>\n
(b) The Seller may, upon at least five Business Days’ notice to the
\nAdministrative Agent and the Purchasers, terminate in whole or reduce in part
\nthe unused portion of the Purchase Limit; provided, that each partial reduction
\nshall be in the amount of at least $5,000,000 or an integral multiple thereof
\nand shall be applied pro rata among the Purchasers according to their Pro Rata
\nShares; provided, further, that any partial reduction of the Purchase Limit for
\nany Purchaser must not result in a remaining Purchase Limit of less than
\n$25,000,000 or the Purchase Limit for such Purchaser shall be reduced to zero.
\nAny reductions in the Purchase Limit pursuant to this subsection (b) shall be
\npermanent.<\/p>\n
(c) The Seller may, upon at least five Business Days’ written notice to
\nthe Administrative Agent and the Purchasers specifying an Optional Reduction
\nAmount and an Optional Reduction Effective Date, effect an Optional Reduction.
\nCommencing on the Optional Reduction Effective Date, the Collection Agent shall
\ncease the reinvestment of Collections for a period of time such that after
\ngiving effect to the amount of Collections which are not reinvested in
\naccordance with the provisions of Section 2.04(b)(ii), the amount of Total
\nAggregate Capital on the day immediately preceding the Optional Reduction
\nEffective Date is reduced by an amount equal to the Optional Reduction Amount.
\nAny Optional Reduction under this subsection (c) shall be applied pro rata among
\nthe Purchasers according to their Pro Rata Shares. The Seller shall indemnify
\nany Purchaser for all losses, expenses and liabilities, if any (including,
\nwithout limitation, any loss or expense incurred by reason of the liquidation or
\nreemployment of deposits or other funds required by any Purchaser in connection
\nwith such Purchaser’s funding or maintenance of the Receivable Interests), which
\nsuch<\/p>\n
18<\/p>\n
Purchaser may sustain as a result of any Optional Reduction pursuant to
\nthis subsection (c).<\/p>\n
(d) The Seller may, upon 60 days’ prior written notice to the
\nPurchasers, request the reallocation of the Pro Rata Shares of the Purchasers;
\nprovided, however, that the Seller shall not be able to request such
\nreallocation after the occurrence of an Event of Termination or a Potential
\nTermination Event. Any reallocation of a Purchaser’s Pro Rata Share as in effect
\nprior to such reallocation which increases the Purchase Limit of such Purchaser
\nshall be at the sole discretion of such Purchaser and shall be effective only if
\nthe Related Secondary Purchaser increases its “Commitment” under the Secondary
\nPurchase Agreement by an amount corresponding to the amount of the increase, if
\nany, in the Purchaser’s Purchase Limit arising from such reallocation. If, as a
\nresult of any reallocation, a Purchaser’s Aggregate Capital exceeds its Pro Rata
\nShare (as proposed to be reallocated) of the Purchase Limit, such Purchaser
\nshall transfer a Receivable Interest or Receivables Interest computed on the
\nbasis of such excess Capital to the Purchaser or Purchasers whose Pro Rata Share
\nhas increased as a result of such reallocation in exchange for a cash payment in
\nan amount equal to the aggregate Capital of the Receivable Interests so
\ntransferred.<\/p>\n
(e) The Seller may, upon thirty days’ prior written notice to the
\nAdministrative Agent and the Purchasers and the written signed consent of the
\nAdministrative Agent and the Purchasers, cease purchasing Receivables from any
\nOriginator, and after the Seller ceases purchasing Receivables from such
\nOriginator, such Originator shall no longer have the obligations of an
\nOriginator for all purposes of this Agreement other than with respect to those
\nobligations which are expressly intended to survive the termination of this
\nAgreement, including, without limitation, the indemnities contained in Section
\n8.01 as incorporated by reference in the Consent and Acknowledgement to which
\nsuch Originator is a party. If, as a result of the Seller’s decision to cease
\npurchasing Receivables from any Originator, the Required Purchasers determine,
\nin their sole discretion, that the Events of Termination in Section 7.01(j) are
\nno longer reasonable or protective, the Required Purchasers may modify the
\nprovisions of such Section 7.01(j) with the consent of the Seller (which consent
\nshall not be unreasonably withheld or delayed).<\/p>\n
(f) The Seller may, upon thirty days’ prior written notice to the
\nAdministrative Agent and the Purchasers and the written signed consent of the
\nAdministrative Agent and the Purchasers (which consent shall not be unreasonably
\nwithheld or delayed), cease purchasing from any Originator all Receivables
\ngenerated by any division of such Originator (an “Originator Division”), and
\nafter the Seller ceases purchasing from such Originator all Receivables
\ngenerated by such Originator Division, any agreement arising thereafter between
\nsuch Originator and an Obligor pursuant to or under which such Obligor shall be
\nobligated to pay for merchandise, insurance or services provided by such
\nOriginator Division, shall not be a “Contract” for purposes of this Agreement;
\nprovided, that any Contract generated by such Originator Division prior to the
\ndate the Seller ceases purchasing such Originator Division’s Receivables shall
\nremain a “Contract” for purposes of this Agreement. If, as a result of the
\nSeller’s decision to cease purchasing from any Originator all Receivables
\ngenerated by an<\/p>\n
19<\/p>\n
Originator Division pursuant to this Section 2.01(f), the Required Purchasers
\ndetermine, in their sole discretion, that the Events of Termination in Section
\n7.01(j) are no longer reasonable or protective, the Required Purchasers may
\nmodify the provisions of such Section 7.01(j) with the consent of the Seller
\n(which consent shall not be unreasonably withheld or delayed).<\/p>\n
(g) The Seller may, upon ninety days’ prior written notice to the
\nAdministrative Agent and the Purchasers and the written signed consent of the
\nAdministrative Agent and the Purchasers, commence purchasing from any Originator
\nall Receivables generated by any Originator Division, and after the Seller
\ncommences purchasing from such Originator all Receivables generated by such
\nOriginator Division, all related agreements between the Originator, and an
\nObligor pursuant to or under which such Obligor shall be obligated to pay for
\nmerchandise, insurance or service provided by such Originator Division shall be
\n“Contracts” for all purposes of this Agreement. If, as a result of the Seller’s
\ndecision to commence purchasing from any Originator all Receivables generated by
\nan Originator Division pursuant to this Section 2.01(g), the Required Purchasers
\ndetermine, in their sole discretion, that the Events of Termination in Section
\n7.01(j) are no longer reasonable or protective, the Required Purchasers may
\nmodify the provisions of such Section 7.01(j) with the consent of the Seller
\n(which consent shall not be unreasonably withheld or delayed).<\/p>\n
(h) If Georgia-Pacific sells or otherwise conveys or disposes of the
\nstock of any Originator, upon the effective date of such sale, such Originator
\nshall no longer be an Originator under this Agreement; provided, that, if the
\nRequired Purchasers determine, in their sole discretion, that the Events of
\nTermination in Section 7.01(j) are no longer reasonable or protective as a
\nresult of such sale, the Required Purchasers may modify the provisions of such
\nSection 7.01(j) with the consent of the Seller (which consent shall not be
\nunreasonably withheld or delayed).<\/p>\n
(i) The Facility Termination Date shall be 364 days from the date
\nhereof; provided, that the Facility Termination Date may be extended for an
\nadditional 364-day period at the end of each 364-day period from the date hereof
\nif the Seller gives each Purchaser written notice not later than 90 days prior
\nto each such annual anniversary (beginning with the first such period) and each
\nPurchaser provides the Seller with its written consent to such extension not
\nlater than 60 days after receipt of the Seller’s notice.<\/p>\n
SECTION 2.02 Making Purchases.<\/p>\n
(a) Each Purchase shall be made on at least three Business Days’ notice
\nfrom the Seller to each Purchaser. Each such notice shall specify (i) the amount
\nrequested to be paid to the Seller (which shall not be less than $5,000,000),
\nand (ii) the date of such Purchase (which shall be a Business Day). Each
\nPurchaser shall notify the Seller whether it has determined to make such
\nPurchase not later than 10:00 A.M., New York City time, on the second Business
\nDay prior to the proposed purchase date.<\/p>\n
(b) On the date of each Purchase, each Purchaser shall, upon
\nsatisfaction of the applicable conditions set forth in Section 3.01 and Section
\n3.02, make<\/p>\n
20<\/p>\n
available to the Seller in same day funds, at the Seller’s account with [Bank of
\nAmerica N.A.], account number [12334-01430], an amount equal to the initial
\nCapital of such Receivable Interest purchased by the Purchaser. Each notice
\ngiven by the Seller pursuant to subsection (a) above shall be irrevocable and
\nbinding on the Seller and the Seller shall indemnify each Purchaser against any
\nloss or expense incurred by such Purchaser as a result of any failure by the
\nSeller to accept the amount requested to be paid by such Purchaser, including,
\nwithout limitation, any loss (including loss of anticipated profits) or expense
\nincurred by such Purchaser by reason of the liquidation or reemployment of funds
\nacquired or requested by such Purchaser to fund such requested amount.<\/p>\n
SECTION 2.03 Receivable Interest Percentage.<\/p>\n
(a) Each Receivable Interest shall be initially computed on its date of
\npurchase. Thereafter, until the Reinvestment Termination Date for such
\nReceivable Interest, such Receivable Interest shall be automatically recomputed
\n(or deemed to be recomputed) on each day other than a Liquidation Day. Any
\nReceivable Interest as computed (or deemed recomputed) as of the close of
\nbusiness on the day immediately succeeding the Reinvestment Termination Date for
\nsuch Receivable Interest shall remain constant at all times after such
\nReinvestment Termination Date. Such Receivable Interest shall become zero when
\nthe Capital thereof, Yield thereon and all other amounts due and payable to the
\nPurchasers and the Agent under and in connection with this Agreement shall have
\nbeen paid in full and the Collection Agent (if not the Seller or an Affiliate
\nthereof) shall have received the accrued Collection Agent Fee thereon.<\/p>\n
(b) If any Receivable Interest would otherwise be reduced on any day on
\naccount of newly arising Pool Receivables, the Purchasers may prevent such
\nreduction by notifying the Collection Agent on such day that the Receivables
\nPool and the Net Receivables Pool Balance for such Receivable Interest will
\ninclude, with respect to Receivables arising as Pool Receivables on such day,
\nonly such number or portion of such Receivables as shall cause such Receivable
\nInterest to remain constant. The remainder of such Receivables or portion
\nthereof shall be treated as Receivables arising on the next succeeding Business
\nDay (subject to reapplication of this subsection (b)).<\/p>\n
(c) If any Investor Report indicates that the last day of the prior
\nSettlement Period was a Mandatory Reduction Day, the Collection Agent shall
\npromptly notify the Purchasers and the Seller and shall specify the Mandatory
\nReduction Amount. In addition, if on any Business Day the Seller knows such day
\nto be a Mandatory Reduction Day, it shall promptly notify the Purchasers and the
\nCollection Agent and shall specify the Mandatory Reduction Amount. On the
\nBusiness Day next succeeding the Investor Report Date or such notification to
\nthe Purchasers and the Collection Agent, unless the Seller can demonstrate to
\nthe satisfaction of the Purchasers that such day is not a Mandatory Reduction
\nDay, the Seller shall pay to each Purchaser its full Mandatory Reduction Amount
\nto the extent that the Mandatory Reduction Amount represents Collections which
\nshould have been set aside and held in the trust for such Purchaser pursuant to
\nSection 2.04 hereof but were previously deemed to be reinvested on behalf of
\nsuch Purchaser. If the full Mandatory Reduction Amount is not so paid, the<\/p>\n
21<\/p>\n
Collection Agent shall continue the suspension of the reinvestment of
\nCollections on each Mandatory Reduction Day until such time that, after giving
\neffect to the amount of Collections which are not reinvested in accordance with
\nthe provisions of Section 2.04(b)(ii) and the recomputation of the Receivable
\nInterests pursuant to Section 2.03, the amount of the Aggregate Capital of such
\nPurchaser on the day immediately preceding any Mandatory Reduction Day is
\nreduced by an amount equal to the Mandatory Reduction Amount for such Mandatory
\nReduction Day. The Seller shall indemnify any Purchaser for all losses, expenses
\nand liabilities, if any (including, without limitation, any loss or expense
\nincurred by reason of the liquidation or reemployment of deposits or other funds
\nrequired by such Purchaser in connection with such Purchaser’s funding or
\nmaintenance of the Receivable Interests), which such Purchaser may sustain as a
\nresult of any Mandatory Reduction.<\/p>\n
SECTION 2.04 Settlement Procedures.<\/p>\n
(a) Collection of the Pool Receivables shall be administered by the
\nCollection Agent in accordance with the terms of this Agreement. The Seller
\nshall provide to the Collection Agent on a timely basis all information needed
\nfor such administration, including notice of the occurrence of any Liquidation
\nDay or Provisional Liquidation Day and current computations of each Receivable
\nInterest.<\/p>\n
(b) The Collection Agent shall, on each day on which Collections of
\nPool Receivables are received by it with respect to any Receivable Interest
\nowned by a Purchaser:<\/p>\n
(i) set aside and hold in trust for such Purchaser, out of the
\n percentage of such Collections represented by such Receivable Interest, an
\n amount equal to such Purchaser’s Yield and Pro Rata Share of the Collection
\n Agent Fee and fees payable pursuant to the Fee Letter, if any, accrued
\n through such day for such Receivable Interest and not previously set aside;
\n provided, that notwithstanding the preceding clause, unless the
\n Administrative Agent shall have given notice at the direction of the
\n Required Purchasers to the contrary, such amounts may be commingled with
\n the Collection Agent’s other funds prior to their payment to the
\n Purchasers;<\/p>\n
(ii) if such day is neither a Liquidation Day nor a Provisional
\n Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction
\n Day, reinvest on behalf of such Purchaser the remainder of such percentage
\n of Collections, to the extent representing a return of Capital, by
\n recomputation of such Receivable Interest pursuant to Section 2.03;<\/p>\n
(iii) if such day is a Liquidation Day or a Provisional Liquidation
\n Day, refrain from making reinvestments and set aside and hold in trust for
\n such Purchaser the entire remainder of such percentage of Collections;
\n provided, that amounts set aside and held in trust on any Provisional
\n Liquidation Day that is subsequently determined not to be a Liquidation Day
\n thereupon shall, to the extent representing a return of Capital, be
\n reinvested in accordance with the preceding subsection (ii);<\/p>\n
22<\/p>\n
(iv) if such day is an Optional Reduction Day, set aside and hold in
\n trust for the Purchaser the entire remainder of such percentage of
\n Collections or, if the remainder of such Collections exceeds the remaining
\n amount of the Optional Reduction Amount, the portion of the remainder of
\n such Collections equal to such remaining amount of the Optional Reduction
\n Amount; provided, that, notwithstanding the preceding clause, unless the
\n Administrative Agent shall have given notice at the direction of the
\n Required Purchasers to the contrary, such amounts may be commingled with
\n the Collection Agent’s other funds prior to their payment to the
\n Purchasers;<\/p>\n
(v) if such day is a Mandatory Reduction Day, set aside and hold in
\n trust for the Purchaser the entire remainder of such percentage of
\n Collections, or if the remainder of such Collections exceeds the remaining
\n amount of the Mandatory Reduction Amount for such day, the portion of the
\n remainder of such Collections equal to such remaining amount of the
\n Mandatory Reduction Amount; provided, that, notwithstanding the preceding
\n clause, unless the Administrative Agent shall have given notice at the
\n direction of the Required Purchasers to the contrary, such amounts may be
\n commingled with the Collection Agent’s other funds prior to their payment
\n to the Purchasers; and<\/p>\n
(vi) release to the Seller for its own account any Collections in
\n excess of such amounts allocated pursuant to subsections (i) through (v)
\n above.<\/p>\n
(c) The Collection Agent shall deposit into an account designated by
\neach Purchaser, on each Settlement Date, unless the Required Purchasers, in
\ntheir sole discretion, require more frequent deposits, all amounts held by the
\nCollection Agent for each Purchaser in accordance with Section 2.04(b), unless
\ndeposited earlier as provided in the next succeeding sentence; provided,
\nhowever, if Collections have been commingled with the Collection Agent’s other
\nfunds prior to their payment to the Purchasers as permitted by the terms of this
\nAgreement, any deposits made pursuant to the preceding clause shall be made by
\nthe Collection Agent from and to the extent of the Collections with respect to a
\nReceivable Interest owned by such Purchaser. If a Liquidation Day or a
\nProvisional Liquidation Day has occurred and is continuing, all amounts held by
\nthe Collection Agent for each Purchaser in accordance with Section 2.04(b) shall
\nbe deposited on the first Business Day following receipt by the Collection Agent
\ninto an account designated by such Purchaser. The aggregate amount so deposited
\nwith respect to a Receivable Interest owned by a Purchaser shall not exceed the
\nsum of such Purchaser’s Capital of, and accrued Yield and Pro Rata Share of the
\nCollection Agent Fee, if any, on such Receivable Interest plus the aggregate of
\nany other amounts then owed by the Seller to such Purchaser hereunder. If the
\namounts so deposited are insufficient to pay in full all amounts due to such
\nPurchaser hereunder, such amounts shall be applied in the following order of
\npriority (whether or not such funds are sufficient to pay in full all such
\namounts): first to the Collection Agent (if other than Georgia-Pacific or its
\ndesignee) in payment of all accrued and unpaid Collection Agent Fee, if any,
\nsecond to such Purchaser in payment in full of all accrued and unpaid Yield,
\nthird to such Purchaser in reduction to zero of the Aggregate Capital of such
\nPurchaser, fourth to such Purchaser in payment of any other amounts owed by<\/p>\n
23<\/p>\n
the Seller to such Purchaser under this Agreement, fifth to the Administrative
\nAgent in payment of amounts owed by the Seller to the Administrative Agent under
\nthis Agreement and sixth to the Collection Agent (if Georgia-Pacific or its
\ndesignee).<\/p>\n
After the Capital and Yield with respect to a Receivable Interest, and
\nany other amounts payable by the Seller to the Purchasers or the Administrative
\nAgent hereunder, have been paid in full, all additional Collections with respect
\nto such Receivable Interest shall be paid to the Seller for its own account.<\/p>\n
(d) For the purposes of this Section 2.04:<\/p>\n
(i) if on any day the Outstanding Balance of any Pool Receivable is
\n reduced or adjusted as a result of any defective, rejected, returned,
\n repossessed or foreclosed merchandise or services, or any cash discount or
\n other adjustment made by the Seller or an Originator, or any right of
\n setoff is exercised by the Obligor thereunder, the Seller shall be deemed
\n to have received on such day a Collection of such Pool Receivable in the
\n amount of such reduction or adjustment;<\/p>\n
(ii) if on any day either (w) any of the representations or warranties
\n contained in Sections 4.01(h) or 4.01(n) are no longer true with respect to
\n any Pool Receivable, (x) the Seller shall fail to perform or observe any
\n term, covenant or agreement contained in Section 5.01(d), or (y) the Seller
\n or any Originator or the Collection Agent (if Georgia-Pacific or an
\n Affiliate thereof) shall extend, amend or otherwise modify the terms of any
\n Pool Receivable, or amend, modify or waive the terms or conditions of the
\n Contract under which such Pool Receivable arises in a manner which
\n materially and adversely affects the collectibility of such Pool
\n Receivable, the Seller shall be deemed to have received on such day a
\n Collection of such Pool Receivable in full;<\/p>\n
(iii) except as provided in subsection (i) or (ii) of this Section
\n 2.04(d), or as otherwise required by applicable law or the relevant
\n Contract, all Collections received from an Obligor of any Receivable shall
\n be applied to the Receivables of such Obligor in order of the age of such
\n Receivables, starting with the oldest such Receivable, unless such Obligor
\n designates its payment for application to specific Receivables; and<\/p>\n
(iv) if and to the extent any Purchaser shall be required for any
\n reason to pay over to an Obligor any amount received on its behalf
\n hereunder, such amount shall be deemed not to have been so received but
\n rather to have been retained by the Seller and, accordingly, such Purchaser
\n shall have a claim against the Seller for such amount, payable when and to
\n the extent that any distribution from or on behalf of such Obligor is made
\n in respect thereof.<\/p>\n
SECTION 2.05 Fees.<\/p>\n
(a) The Seller shall pay to the Purchasers fees in the amounts and at
\nthe times specified in the Fee Letter.<\/p>\n
24<\/p>\n
(b) The Collection Agent shall be paid a Collection Agent Fee as set
\nforth in Section 6.06 hereof.<\/p>\n
(c) The Seller shall pay to the Administrative Agent a fee as
\nseparately agreed between the Seller and the Administrative Agent.<\/p>\n
Each Purchaser shall, on the first Business Day of each calendar month,
\nprovide to the Seller and the Collection Agent a statement specifying, for the
\nmost recently completed Settlement Period, the amount and calculation of such
\nPurchaser’s Yield and Pro Rata Share of the fees payable pursuant to the Fee
\nLetter. The failure of any Purchaser to provide any such statement to the Seller
\nor the Collection Agent shall not relieve the Seller of its obligations to pay
\nsuch Purchaser’s Yield or Pro Rata Share of such fees.<\/p>\n
SECTION 2.06 Payments and Computations, Etc.<\/p>\n
(a) All amounts to be paid or deposited by the Seller or the Collection
\nAgent hereunder shall be paid or deposited no later than 3:00 P.M. (New York
\nCity time) on the day when due in same day funds to each Purchaser’s account (as
\ndesignated by each such Purchaser).<\/p>\n
(b) The Seller shall, to the extent permitted by law, pay on demand
\nfrom time to time interest on any amount not paid or deposited by the Seller or
\nthe Collection Agent when due hereunder at an interest rate per annum equal to
\n2% per annum above the Base Rate in effect from time to time; provided, however,
\nthat such interest rate shall not at any time exceed the maximum rate permitted
\nby applicable law.<\/p>\n
(c) All computations of interest under subsection (b) above and all
\ncomputations of Yield, fees, and other amounts hereunder shall be made on the
\nbasis of a year of 360 days and the actual number of days elapsed. Whenever any
\npayment or deposit to be made hereunder shall be due on a day other than a
\nBusiness Day, such payment or deposit shall be made on the next succeeding
\nBusiness Day and such extension of time shall be included in the computation of
\nsuch payment or deposit.<\/p>\n
SECTION 2.07 Dividing or Combining Receivable Interests. The Seller
\nmay, on notice to and consent by a Purchaser received at least three Business
\nDays prior to the last day of any Settlement Period, divide any Receivable
\nInterest of such Purchaser into two or more Receivable Interests having
\naggregate Capital equal to the Capital of such divided Receivable Interest. The
\nSeller may, on notice to and consent by a Purchaser received at least three
\nBusiness Days prior to the last day of any Settlement Period either (i) combine
\ntwo or more existing Receivable Interests of such Purchaser or (ii) combine an
\nexisting Receivable Interest or existing Receivable Interests and a proposed
\nReceivable Interest, all of such Purchaser, in each case on such last day into a
\nsingle Receivable Interest having Capital equal to the aggregate Capital of such
\nexisting Receivable Interest or such existing Receivable Interests and such
\nproposed Receivable Interest, as the case may be.<\/p>\n
25<\/p>\n
SECTION 2.08 Yield Protection.<\/p>\n
(a) If, after the date hereof, the adoption of any applicable law, rule
\nor regulation, or any change therein, including Regulation D of the Board of
\nGovernors of the Federal Reserve System, or any change in the interpretation or
\nadministration thereof by any governmental authority, central bank or comparable
\nagency charged with the interpretation or administration thereof, or compliance
\nby any Purchaser or any Person controlling any thereof, any permitted assignee
\nunder this Agreement or any Person maintaining any liquidity, purchase or credit
\nenhancement facility for any Purchaser (each of which being an “Affected Party”)
\nwith any request or directive (whether or not having the force of law) of any
\nsuch authority, central bank or comparable agency,<\/p>\n
(A) shall subject an Affected Party to any tax (except for taxes on the
\noverall net income of such Affected Party), duty or other charge with respect to
\nthe Receivable Interests or any right to make purchases, or shall change the
\nbasis of taxation of payments to an Affected Party of its Capital or Yield or
\nany other amounts due under this Agreement in respect of its Capital or its
\nrights, if any, to make purchases; or<\/p>\n
(B) shall impose, modify or deem applicable any reserve requirement
\n(including, without limitation, any reserve requirement imposed by the Board of
\nGovernors of the Federal Reserve System, but excluding any reserve requirement,
\nif any, included in the determination of Yield), special deposit or similar
\nrequirement against assets of, deposits with or for the account of, or credit
\nextended by, any Affected Party; or<\/p>\n
(C) shall impose any other condition affecting the Receivable Interests
\nor the Purchaser’s rights, if any, to make purchases;<\/p>\n
and the result of any of the foregoing is (i) to increase the cost to, or, in
\nthe case of Regulation D referred to above, to impose a cost on an Affected
\nParty funding or making or maintaining any Receivable Interest, or (ii) to
\nreduce the amount of any sum received or receivable by an Affected Party under
\nthis Agreement with respect thereto, then within ten days after demand by such
\nAffected Party (which demand shall be accompanied by a statement setting forth
\nthe basis for such demand), the Seller shall pay directly to such Affected Party
\nsuch additional amount or amounts as will compensate such Affected Party for
\nsuch additional or increased cost incurred or such reduction suffered.<\/p>\n
(b) If an Affected Party shall reasonably determine that the adoption
\nof any applicable law, rule, regulation, directive or guideline regarding
\ncapital adequacy, or any change in or phase-in of any applicable law, rule,
\nregulation, directive or guideline or in the interpretation or administration
\nthereof by any governmental authority, central bank or comparable agency charged
\nwith the interpretation or administration thereof, or compliance by an Affected
\nParty with any request or directive regarding capital adequacy (whether or not
\nhaving the force of law) of any such authority, central bank or comparable
\nagency, has or would have the effect of reducing the rate of return on the
\ncapital of any Affected Party as a consequence of its obligations hereunder or
\narising in<\/p>\n
26<\/p>\n
connection herewith to a level below that which any such Affected Party could
\nhave achieved but for such adoption, change or compliance (taking into
\nconsideration the policies of such Affected Party with respect to capital
\nadequacy) by an amount deemed by such Affected Party to be material, then from
\ntime to time, within ten days after demand by such Affected Party, the Seller
\nshall pay to such Affected Party such additional amount or amounts as will
\ncompensate such Affected Party for such reduction.<\/p>\n
(c) Each Affected Party will promptly notify the Seller of any event of
\nwhich it has knowledge occurring after the date hereof which will entitle such
\nAffected Party to compensation pursuant to this Section 2.08. If an Affected
\nParty fails to give such notice within 90 days after it obtains actual knowledge
\nof such event and such result, such Affected Party shall be entitled to
\ncompensation pursuant to this Section 2.08 only to the extent such additional
\namount or reduction accrues on or after the date 90 days prior to the date on
\nwhich such Affected Party gives such notice.<\/p>\n
(d) In determining any amount provided for in this Section 2.08, the
\nAffected Party may use any reasonable averaging and attribution methods. Any
\nAffected Party making a claim under this Section 2.08 shall submit to the Seller
\na certificate as to such additional or increased cost or reduction, which
\ncertificate shall be conclusive absent demonstrable error; provided, that the
\nfailure to deliver any such certificate shall not affect the Affected Party’s
\nright to payment hereunder unless notice as required by Section 2.08(c) has not
\nbeen given.<\/p>\n
SECTION 2.09 Sharing of Payments, Etc. If any Purchaser shall obtain
\nany payment (whether voluntary, involuntary, through the exercise of any right
\nof setoff, or otherwise) on account of Pool Receivables covered by a Receivable
\nInterest (other than pursuant to Section 2.08) in excess of payments on account
\nof Pool Receivables allocable to such Receivable Interest, such Purchaser shall
\nforthwith purchase from the other Purchasers such participations in the Pool
\nReceivables as shall be necessary to cause such purchasing Purchaser to share
\nthe excess payment ratably with each of them, provided, however, that if all or
\nany portion of each excess payment is thereafter recovered from such purchasing
\nPurchaser, such purchase from each Purchaser shall be rescinded and such
\nPurchaser shall repay to the purchasing Purchaser the purchase price to the
\nextent of such recovery together with an amount equal to each Purchaser’s Pro
\nRata Share of any interest or other amount paid or payable by the purchasing
\nPurchaser in respect of the total amount so recovered.<\/p>\n
SECTION 2.10 Effect of Early Payments. In the event any Purchaser: (i)
\nhas the Capital of a Receivable Interest reduced without compliance by the
\nSeller with the notice requirements hereunder or (ii) does not become subject to
\na Mandatory Reduction or an Optional Reduction upon the occurrence of a
\nMandatory Reduction Day or an Optional Reduction Day, then the Seller agrees to
\npay to the relevant Purchaser an amount equal to the excess, if any, of:<\/p>\n
(A) Yield that would have accrued during the remainder of the
\nSettlement Period or the tranche periods for Notes determined by such Purchaser
\nto relate to such Receivable Interest (as applicable) subsequent to the date of
\nsuch reduction (or in<\/p>\n
27<\/p>\n
respect of clause (ii) above, the date such Mandatory Reduction or Optional
\nReduction took effect pursuant to the occurrence of a Mandatory Reduction Day or
\nan Optional Reduction Day) on such Capital if such reduction or such Mandatory
\nReduction Day or Optional Reduction Day had not occurred,<\/p>\n
over<\/p>\n
(B) the income, if any, actually received during the remainder of such
\nperiod by such Purchaser from investing the amount received as a reduction of
\nsuch Capital, in accordance with such Purchaser’s normal investment policies.<\/p>\n
All payments made pursuant to this Section 2.10 shall be due and payable
\nhereunder upon demand. The determinations made by any Purchaser pursuant to this
\nSection 2.10 shall be binding absent demonstrable error.<\/p>\n
ARTICLE III.
\n CONDITIONS OF PURCHASES<\/p>\n
SECTION 3.01 Conditions Precedent to Initial Purchase. The initial
\nPurchase of Receivable Interests under this Agreement is subject to the
\nconditions precedent that the Purchasers shall have received on or before the
\ndate of such Purchase the following, each (unless otherwise indicated) dated
\nsuch date and in form and substance satisfactory to the Purchasers and the
\nAdministrative Agent:<\/p>\n
(a) Certificates of the Secretary or Assistant Secretary of the Seller
\nand each Originator certifying the names and true signatures of their respective
\nofficers authorized to sign this Agreement and the other documents to be
\ndelivered by them hereunder or in connection herewith, evidence of corporate
\nauthorization of the transactions contemplated hereby, the articles of
\nincorporation (attached and appropriately certified by the Secretary of State of
\nthe Seller’s and each Originator’s jurisdiction of incorporation) and the
\nby-laws and all amendments thereto of the Seller and each Originator.<\/p>\n
(b) Executed financing statements (including any assignments of and
\namendments to financing statements previously filed), to be filed on or before
\nthe date of such initial Purchase under the UCC of all jurisdictions that the
\nPurchasers or the Administrative Agent may deem necessary or desirable in order
\n(i) to perfect the ownership interests contemplated by this Agreement and (ii)
\nto perfect the ownership interests of the Seller in the receivables purchased by
\nthe Seller from the Originators pursuant to the Transfer Agreements.<\/p>\n
(c) Executed UCC termination statements, if any, necessary to release
\nall security interests and other rights of any Person (other than the Purchasers
\nand the Secondary Purchasers) in the Receivables, Contracts or Related Security
\npreviously granted by the Seller or any Originator.<\/p>\n
(d) Evidence (including Uniform Commercial Code search reports) that
\nall Receivables and all proceeds thereof are free and clear of liens, security
\ninterests,<\/p>\n
28<\/p>\n
claims and encumbrances other than those held by the Purchasers and the
\nSecondary Purchasers.<\/p>\n
(e) An executed Transfer Agreement and Consent and Acknowledgment from
\neach Originator.<\/p>\n
(f) [Notices, in form the form of Exhibit F and Exhibit G to each
\nDepository Bank and each Concentration Bank, respectively.]<\/p>\n
SECTION 3.02 Conditions Subsequent. The Seller shall, no later than
\nNovember 1, 1999, deliver to the Purchasers and the Administrative Agent:<\/p>\n
(a) A favorable opinion of Troutman Sanders LLP, counsel for the Seller
\nand the Originators, in form and substance reasonably satisfactory to the
\nPurchasers.<\/p>\n
(b) A favorable opinion of local counsel for each Originator which has
\na principal place of business or, if such Originator has more than one principal
\nplace of business, a chief executive office in a state other than Georgia, in
\nform and substance reasonably satisfactory to the Purchasers.<\/p>\n
SECTION 3.03 Conditions Precedent to All Purchases and Reinvestments.
\nEach Purchase (including the initial Purchase) and each reinvestment shall be
\nsubject to the further conditions precedent that (a) in the case of each
\nPurchase, the Collection Agent shall have delivered to the Purchasers and the
\nAdministrative Agent on or prior to the date of such Purchase, in form and
\nsubstance satisfactory to the Purchasers, all Investor Reports as and when due
\nunder Section 6.02(g) and, on or prior to the date of the initial Purchase, an
\nInvestor Report containing then current information acceptable to the
\nPurchasers, and (b) on the date of each Purchase or reinvestment, the following
\nstatements shall be true (and acceptance of the proceeds of such Purchase or
\nreinvestment shall be deemed a representation and warranty by the Seller that
\nsuch statements are then true):<\/p>\n
(i) the representations and warranties contained in Article IV are
\n correct on and as of the date of such Purchase or reinvestment as though
\n made on and as of such date,<\/p>\n
(ii) no event has occurred and is continuing, or would result from such
\n Purchase or reinvestment, that constitutes an Event of Termination or a
\n Potential Termination Event,<\/p>\n
(iii) Georgia-Pacific is a Member,<\/p>\n
(iv) the Internal Revenue Service shall not have filed a notice of lien
\n pursuant to Section 6323 of the Code with regard to any assets of the
\n Seller or any Originator, and the Pension Benefit Guaranty Corporation
\n shall not have filed a notice of lien pursuant to Section 4068 of ERISA
\n with regard to any assets of the Seller or any Originator, unless such
\n liens (1) have been suspended or (2)<\/p>\n
29<\/p>\n
are being contested in good faith by the Seller or such Originator and have
\n been bonded in the full amount thereof; provided, however, that with
\n respect to any Originator, the amount of such lien shall be greater than
\n $50,000,000, and<\/p>\n
(v) the Facility Termination Date shall not have occurred,<\/p>\n
and (c) the Purchasers shall have received such other approvals, opinions or
\ndocuments as they may reasonably request.<\/p>\n
ARTICLE IV.
\n REPRESENTATIONS AND WARRANTIES<\/p>\n
SECTION 4.01 Representations and Warranties of the Seller and the
\nCollection Agent. Each of the Seller and the Collection Agent makes, with
\nrespect to itself, the following representations and warranties to each
\nPurchaser and the Administrative Agent on the date of each Purchase and on the
\ndate of each reinvestment as follows:<\/p>\n
(a) It is duly incorporated, validly existing and in good standing
\nunder the laws of its state of incorporation, and is duly qualified to do
\nbusiness, and is in good standing, in every jurisdiction where the nature of its
\nbusiness or the ownership of its properties requires it to be so qualified where
\nthe failure to be so qualified could materially adversely affect its ability to
\nperform its obligations hereunder or under any Transfer Agreement or the
\nSecondary Purchase Agreement. As of the date hereof, Georgia-Pacific owns
\ndirectly or indirectly 100% of the issued and outstanding common stock of the
\nSeller.<\/p>\n
(b) The execution, delivery and performance by the Seller and the
\nCollection Agent of the Sale Documents to which it is a party, and the Seller’s
\nuse of the proceeds of purchases and reinvestments, are within its corporate
\npowers, have been duly authorized by all necessary corporate action, do not
\ncontravene or violate (i) its certificate of incorporation or articles of
\nincorporation or by-laws; or (ii) any law, rule or regulation or any contractual
\nrestriction binding on or affecting it the breach of which could reasonably be
\nexpected to have a material adverse effect on the Receivables or the transaction
\ncontemplated hereby, or as may restrict or limit the assignment of Receivables
\nof Government Obligors, and do not result in or require the creation of any lien
\n(other than pursuant hereto and pursuant to the Secondary Purchase Agreement)
\nupon or with respect to any of its properties; and no transaction contemplated
\nhereby requires compliance with any bulk sales act or similar law. Each Sale
\nDocument to which the Seller or the Collection Agent is a party has been duly
\nexecuted, authorized and delivered by the Seller or the Collection Agent, as the
\ncase may be.<\/p>\n
(c) Other than the filings of the financing statements under the UCC of
\nthe jurisdictions that the Purchasers or the Administrative Agent deem
\nnecessary, all of which, on or prior to the date of the initial Purchase
\nhereunder, will have been duly made and be in full force and effect, and other
\nthan such filings, registrations and notices as may be required under applicable
\nlaw with respect to the assignment of Receivables of Government Obligors no
\nauthorization or approval or other action by,<\/p>\n
30<\/p>\n
and no notice to or filing with, any governmental authority or regulatory body
\nis required for the due execution, delivery and performance by the Seller or the
\nCollection Agent of this Agreement or any other Sale Document to which the
\nSeller or the Collection Agent is a party or for the perfection of or exercise
\nby the Purchaser of its rights and remedies under this Agreement or any other
\nSale Document to be delivered hereunder.<\/p>\n
(d) Each of this Agreement and each other Sale Document to which the
\nSeller or the Collection Agent is a party constitutes the legal, valid and
\nbinding obligation of the Seller and the Collection Agent, respectively,
\nenforceable against the Seller and the Collection Agent in accordance with their
\nterms, except as such enforcement may be limited by applicable bankruptcy,
\ninsolvency, reorganization or other similar laws relating to or limiting
\ncreditors’ rights generally.<\/p>\n
(e) The unaudited consolidated financial statements of the Collection
\nAgent and its subsidiaries as of July 3, 1999, copies of which have been
\nfurnished to the Purchasers, fairly present the financial condition of the
\nCollection Agent and its subsidiaries as of such date and the consolidated
\nresults of their operations for the period ended on such date, and have been
\nprepared in accordance with GAAP consistently applied in all material respects
\nby the Collection Agent and its subsidiaries throughout the period involved,
\nexcept as set forth in the notes thereto and there has been no material adverse
\nchange in such financial position or operations as they existed as of such date.<\/p>\n
(f) There is no pending or threatened action or proceeding affecting
\nthe Seller or the Collection Agent or any of their respective subsidiaries or
\nproperties before any court, governmental agency or arbitrator which could
\nreasonably be expected to materially adversely affect (i) the financial
\ncondition or operations of the Seller or the Collection Agent and its
\nsubsidiaries or (ii) the ability of the Seller or the Collection Agent to
\nperform their obligations under this Agreement or any other Sale Document to
\nwhich it is a party or (iii) the legality, validity or enforceability of this
\nAgreement or any other Sale Document to which it is a party or (iv) any
\nPurchaser’s interest in the Pool Receivables generally or in any significant
\nportion of the Pool Receivables, the Related Security or the Collections with
\nrespect thereto, or (v) the collectibility of the Pool Receivables generally or
\nof any significant portion of the Pool Receivables. Neither the Seller nor the
\nCollection Agent is in default with respect to any order of any court,
\narbitrator or governmental body. No Event of Termination, or event which, with
\nthe passage of time or the giving of notice, or both, would be an Event of
\nTermination, is continuing.<\/p>\n
(g) No proceeds of any purchase or reinvestment will be used (i) for a
\npurpose which violates, or would be inconsistent with regulations T, U or X
\npromulgated by the Board of Governors of the Federal Reserve System from time to
\ntime or (ii) to acquire any security in any transaction which is subject to
\nSection 13 and 14 of the Securities Exchange Act of 1934, as amended.<\/p>\n
(h) Immediately prior to a Purchase hereunder, the Seller shall be the
\nlegal and beneficial owner of the Pool Receivables and Related Security with
\nrespect<\/p>\n
31<\/p>\n
thereto (except with respect to Related Security and with respect to
\nReceivables of Government Obligors, the transfer of which may be limited by
\napplicable law), free and clear of any Adverse Claim, except as created by this
\nAgreement and the Secondary Purchase Agreement and the documents entered into in
\nconnection herewith and therewith. This Agreement is effective to, and shall,
\nupon each purchase or reinvestment, transfer to each Purchaser (and each
\nPurchaser shall acquire from the Seller) a valid and perfected first priority
\nundivided percentage ownership interest to the extent of such Purchaser’s
\nReceivable Interest in each Pool Receivable existing or hereafter arising and in
\nthe Related Security and Collections with respect thereto, except as may be
\nlimited by applicable law with respect to the Related Security and with respect
\nto Receivables of Government Obligors, free and clear of any Adverse Claim,
\nexcept as created by this Agreement and the Secondary Purchase Agreement and the
\ndocuments entered into in connection herewith and therewith. No effective
\nfinancing statement or other instrument similar in effect covering any Contract
\nor any Pool Receivable or the Related Security or Collections with respect
\nthereto is on file in any recording office, except those filed in favor of the
\nAdministrative Agent pursuant to this Agreement and the Secondary Purchase
\nAgreement and those filed in favor of the Seller pursuant to a Transfer
\nAgreement. Upon the filing of UCC-1 financing statements naming the
\nAdministrative Agent as secured party and the Seller as debtor, the
\nAdministrative Agent, as agent for the Purchasers, shall have a first priority
\nperfected security interest in the Pool Receivables, Related Security and
\nCollections, to the extent of each Purchaser’s Receivable Interest, to the
\nextent a security interest in such items of property can be perfected under the
\nUCC.<\/p>\n
(i) Prior to a transfer pursuant to a Transfer Agreement, the related
\nOriginator shall be the legal and beneficial owner of the Receivables and the
\nRelated Security sold to the Seller pursuant to such Transfer Agreement free and
\nclear of any Adverse Claim. Each Transfer Agreement is effective to, and shall,
\nupon the creation of a Receivable owing to such Originator party to such
\nTransfer Agreement, transfer to the Seller (and the Seller shall acquire) from
\nsuch Originator all right, title and interest of such Originator in each such
\nReceivable and in the Related Security and Collections with respect thereto,
\nexcept as may be limited by applicable law with respect to the Related Security
\nand with respect to Receivables of Government Obligors, free and clear of any
\nAdverse Claim, except as contemplated by this Agreement and the Secondary
\nPurchase Agreement.<\/p>\n
(j) Each Investor Report (if prepared by the Seller, an Originator or
\none of their Affiliates, or to the extent that information contained therein is
\nsupplied by the Seller, an Originator or an Affiliate), information, exhibit,
\nfinancial statement, document, book, record or report (other than projections
\nprepared in good faith) furnished or to be furnished at any time by a
\nResponsible Officer of the Seller or an Originator to the Administrative Agent
\nor the Purchasers in connection with this Agreement was, is, or will be accurate
\nin all material respects as of its date or (except as otherwise disclosed to the
\nAdministrative Agent or the Purchasers, as the case may be, at such time) as of
\nthe date so furnished, and no such document contains or will contain any untrue
\nstatement of a material fact or omits or will omit to state a material fact<\/p>\n
32<\/p>\n
necessary in order to make the statements contained therein, in light of the
\ncircumstances under which they were made, not misleading.<\/p>\n
(k) The principal places of business and chief executive offices of the
\nSeller and the Originators, and the office where the Seller keeps its records
\nconcerning the Receivables are, as of the date hereof, located at the addresses
\nreferred to in Section 11.02 and on Schedule V hereof, respectively.<\/p>\n
(l) The names and addresses of all Lock-Box Banks, Depositary Banks and
\nConcentration Banks, together with the account numbers of the Lock-Box Accounts,
\nthe Depositary Accounts and the Concentration Accounts of the Seller and the
\nOriginators at such Lock-Box Banks, such Depositary Banks and such Concentration
\nBanks, are, as of the date hereof, specified in Schedule I hereto, Schedule II
\nhereto and Schedule III hereto, respectively (or at such other Lock-Box Banks,
\nDepositary Banks or Concentration Banks and\/or with such other Lock-Box
\nAccounts, Depositary Accounts or Concentration Accounts as have been notified to
\nthe Administrative Agent and the Purchasers in writing in accordance herewith).<\/p>\n
(m) Each purchase of a Receivable Interest and each reinvestment of
\nCollections in Pool Receivables hereunder, and each Purchase by the Seller from
\nan Originator of a Receivable under the Transfer Agreement to which such
\nOriginator is a party, will constitute (i) a “current transaction” within the
\nmeaning of Section 3(a)(3) of the Securities Act of 1933, as amended, and (ii) a
\npurchase or other acquisition of notes, drafts, acceptances, open accounts
\nreceivable or other obligations representing part or all of the sales price of
\nmerchandise, insurance or services within the meaning of Section 3(c)(5) of the
\nInvestment Company Act of 1940, as amended.<\/p>\n
(n) Each Pool Receivable at the time it first becomes covered by a
\nReceivable Interest, shall be an Eligible Receivable. Each Pool Receivable used
\nin computing the Net Receivables Pool Balance shall, at the time of such
\ncomputation, be an Eligible Receivable. No event has occurred which materially
\nand adversely affects the collectibility of the Pool Receivables generally or
\nthe collectibility of a significant portion of the Pool Receivables.<\/p>\n
(o) No event has occurred which could reasonably be expected to
\nmaterially adversely affect the operations of the Seller or the Collection Agent
\nand its subsidiaries considered on a consolidated basis as it existed as of July
\n3, 1999 or the ability of the Seller or the Collection Agent to perform its duty
\nto collect the Pool Receivables or the ability of the Seller or the Collection
\nAgent to perform its obligations under this Agreement or any other Sale Document
\nto which it is a party.<\/p>\n
(p) With respect to each Receivable sold by an Originator to the Seller
\nand included in a Receivables Pool, the Seller shall have paid or promised to
\npay to such Originator at the time of such sale an amount equal to the
\nOutstanding Balance of such Receivable.<\/p>\n
(q) The Seller and each Originator are treating the conveyance of the
\nReceivables Interest in the Receivables, the Related Security and the
\nCollections under<\/p>\n
33<\/p>\n
this Agreement and each sale of a Receivable under the Transfer Agreements,
\nrespectively, as a sale for purposes of GAAP.<\/p>\n
(r) Neither the Seller nor the Collection Agent has extended or
\nmodified the terms of any Pool Receivable or the invoice under which any such
\nPool Receivable arose except in accordance with the Credit and Collection
\nPolicy.<\/p>\n
(s) The obligations of the Seller hereunder to make payment in respect
\nof fees payable to the Purchasers, deemed Collections under Section 2.04(d) and
\nindemnities rank at least equally with Debt of the Seller which is not
\ncontractually subordinated.<\/p>\n
(t) Neither the Seller nor the Collection Agent has granted any Person
\ndominion and control of any Lock-Box Account, Depositary Account or
\nConcentration Account, or the right to take dominion and control of any Lock-Box
\nAccount, Depositary Account or Concentration Account at a future time or upon
\nthe occurrence of a future event.<\/p>\n
(u) The transactions under this Agreement and the other Sale Documents
\nexecuted and delivered by the Seller do not and will not render the Seller not
\nSolvent.<\/p>\n
(v) The Seller and the Collection Agent have filed or caused to be
\nfiled all tax returns which, to their knowledge, are required to be filed or has
\nfiled timely extensions therefor. The Seller and the Collection Agent have paid
\nall taxes and all assessments made against them or any of its property when due
\nand payable (other than any amount of tax the validity of which is currently
\nbeing contested in good faith by appropriate proceedings and with respect to
\nwhich reserves in accordance with GAAP have been provided on the books of the
\nSeller or the Collection Agent, as the case may be), and no tax lien has been
\nfiled and, to the Seller’s or the Collection Agent’s knowledge, no claim is
\nbeing asserted, with respect to any such tax, fee or other charge, provided,
\nthat, with respect to the Collection Agent (if Georgia-Pacific), the amount of
\nsuch claim is at least $75,000,000.<\/p>\n
(w) Since April 15, 1999, there have been no changes to the Credit and
\nCollection Policy which could reasonably be expected to have materially
\nadversely affect the collectibility of any Receivable.<\/p>\n
(x) Neither the Seller nor the Collection Agent is an “investment
\ncompany” or a company controlled by an “investment company” within the meaning
\nof the Investment Company Act of 1940, as amended.<\/p>\n
(y) The Seller and the Collection Agent shall have reviewed areas
\nwithin its business and operations which could be adversely affected by, and
\nhave developed a plan (a “Year 2000 Plan”) to address on a timely basis, the
\nYear 2000 Problem. The Seller and the Collection Agent shall take all actions
\nnecessary to meet the schedule and goals of its Year 2000 Plan, and do not
\nanticipate that the Year 2000 Problem will have a material adverse effect on the
\ntransaction.<\/p>\n
34<\/p>\n
Upon discovery by the Seller, the Collection Agent, any Purchaser or
\nthe Administrative Agent of a breach of any of the foregoing representations and
\nwarranties, the party discovering such breach shall give prompt written notice
\nto the others.<\/p>\n
ARTICLE V.
\n COVENANTS<\/p>\n
SECTION 5.01 Covenants of the Seller and the Collection Agent. Until
\nthe date on which no Capital of any Receivable Interest shall be outstanding and
\nno further Purchases are to be made under this Agreement:<\/p>\n
(a) Compliance with Laws, Etc. Each of the Seller and the Collection
\nAgent shall comply in all material respects with its certificate of
\nincorporation and by-laws and all applicable laws, rules, regulations and orders
\nwith respect to it, its properties, and all Receivables in which the Purchasers
\nhave a Receivable Interest, and shall preserve and maintain its corporate
\nexistence, rights, franchises, qualifications, and privileges in the
\njurisdiction of its incorporation, and qualify and remain qualified in good
\nstanding as a foreign corporation in each jurisdiction where the failure to be
\nso qualified could materially adversely affect its ability to perform its
\nobligations hereunder and under the other Sale Documents to which it is a party.<\/p>\n
(b) Offices, Records and Books of Accounts. The Seller shall keep its
\nprincipal place of business and chief executive office at the address of the
\nSeller referred to in Section 11.02, or, upon 30 days’ prior written notice to
\nthe Administrative Agent and the Purchasers, at any other locations in a
\njurisdiction where all action required by Section 6.05(a) shall have been taken.
\nThe Seller and the Collection Agent shall maintain and implement administrative
\nand operating procedures (including, without limitation, an ability to recreate
\nrecords evidencing Pool Receivables and related Contracts in the event of the
\ndestruction of the originals thereof), and keep and maintain all documents,
\nbooks, records and other information reasonably necessary or advisable for the
\ncollection of all Pool Receivables (including, without limitation, records
\nadequate to permit the daily identification of each Pool Receivable and all
\nCollections of and adjustments to each existing Pool Receivable).<\/p>\n
(c) Performance and Compliance with Contracts and Credit and Collection
\nPolicy. The Seller and the Collection Agent shall, at their own respective
\nexpense, timely and fully perform and comply with all material provisions,
\ncovenants and other promises required to be observed by them under the Contracts
\nrelated to the Pool Receivables, and timely and fully comply in all material
\nrespects with the Credit and Collection Policy in regard to each Pool Receivable
\nand the related Contract.<\/p>\n
(d) Sales, Liens, Etc. Neither the Seller nor the Collection Agent
\nshall sell, assign (by operation of law or otherwise) or otherwise dispose of,
\nor create or suffer to exist any Adverse Claim (other than as contemplated
\nhereunder) upon or with respect to, any Pool Receivable, Related Security
\n(except returned or reclaimed merchandise), related Contract or Collections, or
\nupon or with respect to any account to which any Collections of any Pool
\nReceivable are sent, or assign any right to receive income in<\/p>\n
35<\/p>\n
respect thereof, except as contemplated hereunder and under the Secondary
\nPurchase Agreement and the Transfer Agreements.<\/p>\n
(e) Extension or Amendment of Receivables. Except as provided in
\nSection 6.02(c), neither the Seller nor the Collection Agent shall extend, amend
\nor otherwise modify the terms of any Pool Receivable, or amend, modify or waive
\nany term or condition of any Contract related thereto other than in accordance
\nwith the Credit and Collection Policy, except with the prior written consent of
\nthe Required Purchasers.<\/p>\n
(f) Change in Business or Credit and Collection Policy. Neither the
\nSeller nor the Collection Agent shall make any change in the character of its
\nbusiness or in the Credit and Collection Policy that could, in either case, have
\na material adverse effect on (i) its business or properties, (ii) the ability of
\nthe Seller or the Collection Agent to perform its obligations under this
\nAgreement or any Sale Document to which it is a party or (iii) the
\ncollectibility of the Pool Receivables generally or of any significant portion
\nof the Pool Receivables.<\/p>\n
(g) Audits. The Seller and the Collection Agent shall, at any
\nreasonable time, permit each Purchaser, or its agents or representatives, (i) to
\nexamine and make copies of and abstracts from all Records in the possession or
\nunder the control of the Seller or the Collection Agent relating to Pool
\nReceivables and the Related Security, including, without limitation, the related
\nContracts, and (ii) to visit and inspect the offices and properties of the
\nSeller and the Collection Agent for the purpose of examining such materials
\ndescribed in clause (i) above, and to discuss matters relating to the Seller’s
\nand the Collection Agent’s financial condition or the Pool Receivables and the
\nRelated Security or the Seller’s or the Collection Agent’s performance hereunder
\nor under the Contracts with any of the officers or employees of the Seller or
\nthe Collection Agent having knowledge of such matters.<\/p>\n
(h) Change in Payment Instructions to Obligors. The Seller and the
\nCollection Agent shall not, and shall not permit any Originator to, add or
\nterminate any bank as a Lock-Box Bank or a Depositary Bank or as a Concentration
\nBank from those listed in Schedule I hereto or Schedule II hereto or Schedule
\nIII hereto, respectively, or make any change in its instructions to Obligors
\nregarding payments to be made to the Seller, the Collection Agent or an
\nOriginator or payments to be made to any Lock-Box Bank or Depositary Bank,
\nunless the Administrative Agent and the Purchasers shall have received, at least
\n10 days before the proposed effective date therefor, written notice of such
\naddition, termination or change and, with respect to the addition of the
\nLock-Box Bank, an executed Lock-Box Agreement from, and undated executed copies
\nof Lock-Box Notices to, such new Lock-Box Bank, and with respect to a Depositary
\nBank, undated executed copies of Depositary Notices and, with respect to a
\nConcentration Bank, undated executed copies of Concentration Notices; provided,
\nhowever, that the Seller, the Collection Agent or an Originator shall be
\npermitted to make changes in instructions to Obligors regarding payments if such
\nnew instructions require such Obligor to make payments to another existing
\nLock-Box Account or Depositary Account.<\/p>\n
(i) Deposits to Depositary Accounts and Concentration Accounts. The
\nSeller shall, and shall cause each Originator to, deposit, or cause to be
\ndeposited, all<\/p>\n
36<\/p>\n
Collections of Pool Receivables received by the Seller or an Originator into
\nLock-Box Accounts, Depositary Accounts or Concentration Accounts.<\/p>\n
(j) Reporting Requirements. The Seller will provide to the Purchasers
\nthe following:<\/p>\n
(i) as soon as available and in any event within 45 days after the end
\n of the first three quarters of each fiscal year of Georgia-Pacific, balance
\n sheets of Georgia-Pacific and its subsidiaries as of the end of such
\n quarter and statements of income and cash flows of Georgia-Pacific and its
\n subsidiaries for the period commencing at the end of the previous fiscal
\n year and ending with the end of such quarter, certified by the chief
\n financial officer of Georgia-Pacific;<\/p>\n
(ii) as soon as available and in any event within 90 days after the end
\n of each fiscal year of Georgia-Pacific, a copy of the annual report for
\n such year for Georgia-Pacific and its subsidiaries, containing audited
\n financial statements for such year certified in a manner acceptable to the
\n Purchasers by Arthur Andersen & Co. or other independent public accountants
\n of recognized national standing acceptable to the Purchasers;<\/p>\n
(iii) as soon as possible and in any event within five days after (i)
\n the occurrence of each Event of Termination or Potential Termination Event
\n of which the Seller has knowledge, (ii) any material change in the Credit
\n and Collection Policy or (iii) any action, proceeding or judgment affecting
\n the Seller or any Originator which could reasonably be expected to
\n materially adversely affect the Seller’s or such Originator’s (x) financial
\n condition or operations or (y) ability to perform their respective
\n obligations under the Sale Documents, or which could reasonably be expected
\n to affect the legality, validity or enforceability of any Sale Document or
\n of the Receivables Interest or the interest of the Seller in Receivables
\n purchased from any Originator under the Transfer Agreement, a statement of
\n a Responsible Officer of the Seller or his designee setting forth details
\n thereof and the action that the Originator has taken and proposes to take
\n with respect thereto, it being understood that the Originator shall
\n implement such reasonable procedures as shall be designed to ensure that
\n the Treasurer shall promptly become aware of any Event of Termination or
\n Potential Termination Event;<\/p>\n
(iv) promptly after the sending or filing thereof, copies of all
\n reports that Georgia-Pacific sends to any of its security holders or its
\n creditors and copies of all reports and registration statements that
\n Georgia-Pacific or any subsidiary files with the Securities and Exchange
\n Commission or any national securities exchange;<\/p>\n
(v) promptly after the filing or receipt thereof, copies of all
\n material reports and notices which the Seller, Georgia-Pacific or any ERISA
\n Affiliate files with or receives from the Internal Revenue Service under
\n ERISA or files with or receives from the Pension Benefit Guaranty
\n Corporation or the United States Department of Labor;<\/p>\n
37<\/p>\n
(vi) promptly after the receipt thereof, copies of any notice of a tax
\n lien against any property of the Seller or any Originator which the Seller
\n or such Originator receives from the Internal Revenue Service;<\/p>\n
(vii) at least 45 Business Days prior to any change in the Seller’s or
\n an Originator’s name, a notice setting forth the proposed name and the
\n effective date thereof;<\/p>\n
(viii) on or prior to each Investor Report Date, a certificate signed
\n by a Responsible Officer of the Seller or his designee showing the
\n calculations necessary to determine compliance with this Agreement and
\n stating that, unless a statement required by clause (iii) above has been
\n furnished, to the best of his knowledge, after due inquiry, no Event of
\n Termination or Potential Termination Event has occurred; and<\/p>\n
(ix) such other information documents, records or reports in respect of
\n the Receivables or the condition or operations, financial or otherwise, of
\n the Seller, Georgia-Pacific or any of its subsidiaries as the Purchasers or
\n the Administrative Agent may from time to time reasonably request.<\/p>\n
(k) Purchase of Receivables from an Originator. With respect to any
\nReceivable sold by an Originator to the Seller and included in the Receivables
\nPool, the Seller has paid or will have promised to pay such Originator an amount
\nequal to the Outstanding Balance of such Receivable.<\/p>\n
(l) Collections received by an Originator. Upon notification from the
\nAdministrative Agent, acting at the instruction of the Required Purchasers, the
\nSeller will cause each Originator to hold in trust and promptly turn over to the
\nCollection Agent any Collections received by such Originator on the Seller’s
\nbehalf.<\/p>\n
(m) Change in Transfer Agreements. The Seller shall not, and shall not
\npermit any Originator to, amend, modify or waive any term or condition of this
\nAgreement or any Transfer Agreement or replace the “Servicer” under any Transfer
\nAgreement without the consent of all of the Purchasers.<\/p>\n
(n) UCC Filings. The Seller shall, and shall cause each Originator to,
\nfile and maintain in effect all filings, and take all such other actions, as may
\nbe necessary to protect the validity and perfection of the Receivable Interest
\nand the Seller’s interest in the Receivables purchased from such Originator
\npursuant to a Transfer Agreement.<\/p>\n
(o) Compliance with GAAP. The Seller shall treat the conveyance of the
\nReceivable Interests in the Receivables and the Collections under this Agreement
\nas a sale for purposes of GAAP.<\/p>\n
(p) Deposit of Collections. The Seller shall not, and shall not permit
\nany Originator to, deposit or otherwise credit, or cause or permit to be so
\ndeposited or credited, to any Lock-Box Accounts, Depositary Accounts or
\nConcentration Accounts cash or cash proceeds other than Collections.<\/p>\n
38<\/p>\n
(q) No Modification. The Seller shall not amend or modify Articles
\nThird, Sixth, Seventh, Eighth, Eleventh or Twelfth of the Seller’s certificate
\nof incorporation or Sections 1 and 2 of Article III or Article VIII of the
\nSeller’s by-laws.<\/p>\n
(r) Debt. The Seller shall not create, incur, assume or suffer to exist
\nany Debt or other liability whatsoever, except (i) obligations incurred under or
\nexpressly contemplated by this Agreement, the Secondary Purchase Agreement or
\nthe Transfer Agreements, (ii) liabilities incident to the maintenance of its
\nexistence in good standing or (iii) operating expenses arising in the ordinary
\ncourse of business.<\/p>\n
(s) Loans. The Seller shall not make or suffer to exist any loans or
\nadvances to, or extend any credit to, or make any investments (by way of
\ntransfer of property, contributions to capital, purchase of stock or securities
\nor evidences of Debt, acquisition of the business or assets, or otherwise) in,
\nany Person.<\/p>\n
(t) Dissolution. The Seller shall not enter into any transaction of
\nmerger or consolidation, or liquidate or dissolve itself (or suffer any
\nliquidation or dissolution), or acquire or be acquired by any Person, or convey,
\nsell, lease or otherwise dispose of all or substantially all of its property or
\nbusiness, or cause or consent to an involuntary petition of bankruptcy to be
\nfiled against it, except as provided for in this Agreement and the Secondary
\nPurchase Agreement.<\/p>\n
(u) Indentures, Mortgages, etc. The Seller shall not become a party to,
\nor permit any of its properties to be bound by, any indenture, mortgage,
\ninstrument, contract, agreement, lease or other undertaking, except this
\nAgreement, the Secondary Purchase Agreement and the other agreements executed
\nand delivered by the Seller in connection herewith and therewith.<\/p>\n
(v) Restriction of Contract. The Seller shall not enter into, or be a
\nparty to, any transaction with any of its Affiliates, except (i) the
\ntransactions permitted or contemplated by this Agreement, the Secondary Purchase
\nAgreement and the Transfer Agreement, and (ii) other transactions (including,
\nwithout limitation, the lease of office space or computer equipment or software
\nby the Seller to or from an Affiliate) (A) in the ordinary course of business,
\n(B) pursuant to the reasonable requirements of the Seller’s business, and (C)
\nupon fair and reasonable terms that are no less favorable to the Seller than
\ncould be obtained in a comparable arm’s-length transaction with a Person not an
\nAffiliate of the Seller.<\/p>\n
(w) Agreed Procedures. On or before 15 months from the execution date
\nof this Agreement and annually thereafter, the Administrative Agent or a firm of
\nnationally recognized independent certified public accountants (who may render
\nother services to the Collection Agent or the Seller) shall, on an alternating
\nannual basis, furnish a report (which report shall cover, initially, the period
\nfrom the date of this Agreement to June 30, 2000, and thereafter the 12-month
\nperiod ending on June 30 of each subsequent year) to each Purchaser to the
\neffect that they have applied the procedures described in Schedule VIII and
\nexamined certain documents and records relating to the servicing of the Pool
\nReceivables under this Agreement and that, based upon such procedures, nothing
\nhas come to the attention of the Administrative Agent or<\/p>\n
39<\/p>\n
such accountants, as the case may be, that caused them to believe that the
\nservicing (including, without limitation, the allocation of the Collections) has
\nnot been conducted in compliance with the terms of this agreement, except for
\nsuch exceptions as they believe to be immaterial and such other exceptions as
\nshall be set forth in such statement, and in addition, each report shall set
\nforth the procedures performed. Any reasonable costs incurred by the
\nAdministrative Agent or such accountants in connection with the preparation and
\nfurnishing of such report shall be paid by the Seller promptly upon receipt by
\nthe Seller of an invoice therefor.<\/p>\n
(x) Separate Entity. The Seller hereby acknowledges that the Purchasers
\nare entering into the transactions contemplated by this Agreement in reliance
\nupon the Seller’s identity as a separate legal entity from Georgia-Pacific or
\nany affiliate of Georgia-Pacific (a “GP Entity”). Therefore, from and after the
\ndate of execution and delivery of this Agreement, the Seller shall take all
\nreasonable steps, including, without limitation, all steps that the Purchasers
\nmay from time to time reasonably request, to maintain the Seller’s identity as a
\nseparate legal entity with assets and liabilities distinct from those of any
\nother GP Entity and not just a division of any GP Entity. Without limiting the
\ngenerality of the foregoing and in addition to and consistent with the covenant
\nset forth above, the Seller shall:<\/p>\n
(i) require that all full-time employees of the Seller identify
\n themselves as such and not as employees of any GP Entity (including,
\n without limitation, by means of providing appropriate employees with
\n business identification cards identifying such employees as the Seller’s
\n employees);<\/p>\n
(ii) compensate all employees, consultants and agents directly, from
\n the Seller’s bank accounts, for services provided to the Seller by such
\n employees, consultants and agents and, to the extent any employee,
\n consultant or agent of the Seller is also an employee, consultant or agent
\n of any GP Entity, allocate the compensation of such employee, consultant or
\n agent between the Seller and such GP Entity on a basis which reflects the
\n services rendered to the Seller and such GP Entity;<\/p>\n
(iii) allocate all overhead expenses (including, without limitation,
\n telephone and other utility charges) for items shared between the Seller
\n and any GP Entity on the basis of actual use to the extent practicable and,
\n to the extent such allocation is not practicable, on a basis reasonably
\n related to actual use;<\/p>\n
(iv) at all times have at least one member of its Board of Directors
\n who is not (A) a director, officer, employee or affiliate of any GP Entity,
\n (B) a direct or indirect legal or beneficial owner of more than one percent
\n (1%) of the capital stock of any GP Entity, (C) a creditor, supplier,
\n employee, officer, director, member of the immediate family, manager or
\n contractor of any GP Entity, or (D) a person who controls (whether
\n directly, indirectly or otherwise) any GP Entity or any creditor, supplier,
\n employee, officer, director, manager or contractor of any GP Entity (such
\n member, an “Independent Director”); provided, however, that a member of the
\n Board of Directors who otherwise meets the description of an Independent
\n Director shall not be disqualified from serving as an Independent<\/p>\n
40<\/p>\n
Director if he or she is also an independent director of another
\n corporation that is a GP Entity with a certificate or articles of
\n incorporation substantially similar to the certificate of incorporation of
\n the Seller;<\/p>\n
(v) ensure that all corporate actions are duly authorized by unanimous
\n vote of its Board of Directors;<\/p>\n
(vi) maintain the Seller’s books and records separate from those of any
\n GP Entity;<\/p>\n
(vii) prepare its financial statements separately from those of other
\n GP Entities and insure that any consolidated financial statements of any GP
\n Entity that include the Seller have detailed notes clearly stating that the
\n Seller is a separate corporate entity and that its assets will be available
\n first and foremost to satisfy the claims of its creditors;<\/p>\n
(viii) not commingle funds or other assets of the Seller with those of
\n any other GP Entity and not maintain bank accounts or other depository
\n accounts to which any GP Entity is an account party, into which any GP
\n Entity makes deposits or from which any GP Entity has the power to make
\n withdrawals;<\/p>\n
(ix) not permit any GP Entity to pay any of the Seller’s operating
\n expenses (except pursuant to allocation arrangements that comply with the
\n requirements of subparagraph (iii) of this Section 5.01(x)); and<\/p>\n
(x) not permit the Seller to be named as an insured on the insurance
\n policy covering the property of any GP Entity, or enter into an agreement
\n with the holder of such policy whereby in the event of a loss in connection
\n with such property, proceeds are paid to the Seller.<\/p>\n
(y) Coverage Ratio. The Seller shall not permit at any time the
\n Receivable Interests of any Purchaser to exceed such Purchaser’s Pro Rata
\n Share or the aggregate Receivable Interest of all of the Purchasers to
\n exceed 100%.<\/p>\n
(z) Year 2000 Compliance. No later than November 30, 1999, all computer
\n applications, which are related to or involved in the origination,
\n collection, management or servicing of the Pool Receivables will be able to
\n perform properly date-sensitive functions for all dates before, during
\n and\/or after January 1, 2000, except to the extent that a failure to do so
\n could not reasonably be expected to have a material adverse effect on (i)
\n the business, assets, financial condition or operations of the Seller or
\n any Originator or (ii) the ability of the Seller or any Originator to
\n perform its respective obligations under this Agreement or any Transfer
\n Agreement, respectively.<\/p>\n
(aa) Name Change. The Seller shall not change its name, except upon 45
\n Business Days’ prior written notice to the Administrative Agent and the
\n Purchaser and the taking of all action required by Section 6.05(a).<\/p>\n
41<\/p>\n
ARTICLE VI.
\n ADMINISTRATION AND COLLECTION<\/p>\n
SECTION 6.01 Designation of Collection Agent. The administration and
\ncollection of the Pool Receivables shall be conducted by such Person (the
\n“Collection Agent”) so designated from time to time in accordance with this
\nSection 6.01. Georgia-Pacific is hereby designated as, and hereby agrees to
\nperform the duties and obligations of, the Collection Agent pursuant to the
\nterms of this Agreement. The Purchasers may at any time designate as Collection
\nAgent any Person (including a Purchaser or a Secondary Purchaser) to succeed
\nGeorgia-Pacific or any successor Collection Agent, if such Person shall consent
\nand agree to the terms hereof. Unless the Required Purchasers determine in their
\nsole discretion that it would be impractical or inadvisable to do so, the
\nPurchasers shall give the Seller and the Collection Agent at least five Business
\nDays’ notice of any such designation. The Collection Agent may, with the prior
\nconsent of the Purchasers, subcontract with any other Person for the
\nadministration and collection of all or a significant portion of the Pool
\nReceivables; provided, that the Collection Agent may, so long as it is
\nGeorgia-Pacific, subcontract with an Originator for the administration and
\ncollection of the Pool Receivables without the consent of the Purchasers;
\nprovided, further, that Georgia-Pacific may, without the consent of the
\nPurchasers, subcontract with any other Person for the administration and
\ncollection of Pool Receivables as authorized by the Credit and Collection
\nPolicy. Any such subcontract shall not affect the Collection Agent’s liability
\nfor performance of its duties and obligations pursuant to the terms hereof.<\/p>\n
SECTION 6.02 Duties of Collection Agent.<\/p>\n
(a) The Collection Agent shall take or cause to be taken all such
\nactions as may be necessary or advisable to collect each Pool Receivable from
\ntime to time, all in accordance with applicable laws, rules and regulations,
\nwith reasonable care and diligence, and in accordance with the Credit and
\nCollection Policy. Each of the Seller, each Purchaser and the Administrative
\nAgent hereby appoints the Collection Agent, from time to time designated
\npursuant to Section 6.01 hereof, as agent for itself and for the owners of
\nReceivable Interests to enforce their respective rights and interests in the
\nPool Receivables, the Related Security and the related Contracts.<\/p>\n
(b) The Collection Agent shall administer the Collections in accordance
\nwith the procedures described herein and in Section 2.04. The Collection Agent
\nshall set aside and hold in trust for the account of the Seller and each
\nPurchaser, their respective shares of the Collections of Pool Receivables in
\naccordance with Section 2.04 but shall not be required, except either upon the
\nrequest of the Administrative Agent acting at the direction of the Required
\nPurchasers or upon the occurrence and during the continuance of an Event of
\nTermination or a Potential Termination Event, to segregate the funds
\nconstituting each Purchaser’s share of such Collections from the general funds
\nof the Collection Agent or the Seller prior to the remittance thereof in
\naccordance with Section 2.04. If the Collection Agent shall be required to
\nsegregate Collections pursuant to the proceeding sentence, the Collection Agent
\nshall segregate and deposit with a bank (which may be Canadian Imperial Bank of
\nCommerce, Citibank, N.A. or Bank One, NA (Chicago Office)) designated by each
\nPurchaser such allocable share of Collections of<\/p>\n
42<\/p>\n
Pool Receivables set aside for such Purchaser on the first Business Day
\nfollowing receipt by the Collection Agent of such Collections.<\/p>\n
(c) If no Event of Termination or Potential Termination Event shall
\nhave occurred, the Collection Agent, may, in accordance with the Credit and
\nCollection Policy, extend the maturity or adjust the Outstanding Balance of any
\nReceivable as the Collection Agent deems appropriate to maximize Collections in
\nrespect thereof; provided, that the extension or adjustment by the Collection
\nAgent of a Receivable which is a Defaulted Receivable or a Delinquent Receivable
\nshall not change the status of such Receivable for purposes of this Agreement.<\/p>\n
(d) The Collection Agent shall hold in trust for the Seller and the
\nPurchasers, in accordance with their respective interests, all Records that
\nevidence or relate to Pool Receivables and shall, as soon as practicable upon
\ndemand of the Administrative Agent acting at the direction of the Required
\nPurchasers, deliver or make available to the Administrative Agent all Records in
\nits possession which evidence or relate to Pool Receivables.<\/p>\n
(e) The Collection Agent, shall as soon as practicable following
\nreceipt thereof, turn over to the Seller (i) that portion of Collections of Pool
\nReceivables representing the Seller’s undivided fractional ownership interest
\ntherein, less all reasonable out-of-pocket costs and expenses of the Collection
\nAgent of servicing, administering and collecting the Pool Receivables to the
\nextent not covered by the Collection Agent Fee received by it, and (ii) any cash
\ncollections or other cash proceeds received with respect to Receivables not
\nconstituting Pool Receivables.<\/p>\n
(f) The Collection Agent shall, from time to time at the request of a
\nPurchaser, furnish to such Purchaser (promptly after any such request) a
\ncalculation of the amounts set aside for such Purchaser pursuant to Section 2.04
\nhereof.<\/p>\n
(g) On or prior to each Investor Report Date, the Collection Agent
\nshall prepare and forward to each Purchaser and the Administrative Agent (i) an
\nInvestor Report relating to each Receivable Interest outstanding on the
\nimmediately preceding Settlement Date, and (ii) if requested by a Purchaser, a
\nlisting by Obligor of all Pool Receivables outstanding on such Settlement Date,
\ntogether with an analysis of the aging of such Pool Receivables by Obligor and
\nsuch additional information as may be reasonably requested by such Purchaser.
\nPrior to the occurrence of an Event of Termination or a Potential Termination
\nEvent, the Collection Agent will use its best efforts to provide the Purchasers
\nand the Administrative Agent with the information in clauses (i) and (ii) above
\non a more frequent basis if reasonably requested by the Required Purchasers.
\nFollowing an Event of Termination or a Potential Termination Event, the
\nCollection Agent will provide the Purchasers and the Administrative Agent with
\nthe information in clauses (i) and (ii) above on a more frequent basis if
\nrequired by the Required Purchasers.<\/p>\n
(h) The Collection Agent will, to the extent permitted by applicable
\nlaw and with respect to any amount not paid by the Collection Agent when
\nrequired to be paid hereunder, pay on demand interest to each Purchaser at a
\nrate per annum equal to<\/p>\n
43<\/p>\n
2% above the Base Rate, provided, however, that such interest rate will not at
\nany time exceed the maximum rate permitted by applicable law.<\/p>\n
(i) The Collection Agent’s authorization under this Agreement will
\nterminate after the Facility Termination Date, upon payment in full of all
\namounts payable to the Purchasers and the Collection Agent under this Agreement.<\/p>\n
SECTION 6.03 Rights of the Administrative Agent.<\/p>\n
(a) Upon five days notice to the Seller, unless the Required Purchasers
\ndetermine in their sole discretion that it would be impracticable or inadvisable
\nto give such notice, the Administrative Agent at the direction of the Required
\nPurchasers is authorized at any time to date and to deliver to the Lock-Box
\nBanks, the Lock-Box Notices, to the Depositary Banks, the Depositary Notices and
\nto the Concentration Banks, the Concentration Notices delivered hereunder. The
\nSeller hereby transfers to the Administrative Agent, effective when the
\nAdministrative Agent delivers such Lock-Box Notices, such Depositary Notices or
\nsuch Concentration Notices, as the case may be, the exclusive ownership and
\ncontrol of such Lock-Box Accounts, such Depositary Accounts or such
\nConcentration Accounts. The Seller shall, and shall cause each Originator to,
\ntake any actions reasonably requested by the Administrative Agent to effect such
\ntransfer. In case any authorized signatory of the Seller or any Originator whose
\nsignature appears on a Lock-Box Notice, a Depositary Notice or a Concentration
\nNotice shall cease to have such authority before the delivery of such Lock-Box
\nNotice, such Depositary Notice or a Concentration Notice, such signature shall
\nnevertheless be valid as if such authority had remained in force. The
\nAdministrative Agent at the direction of the Required Purchasers may notify the
\nObligors of Pool Receivables, at any time and at the Seller’s expense, of the
\nownership of Receivable Interests under this Agreement and may also direct that
\npayments of all amounts due or that become due under any or all Receivables be
\nmade directly to the Administrative Agent or its designee. In furtherance of the
\nforegoing, the Administrative Agent shall, upon the direction of the Required
\nPurchasers, be entitled to take all such actions as it deems necessary or
\nadvisable to exercise dominion and control over the collection and servicing of
\nthe Pool Receivables including such action as shall be necessary or desirable to
\ncause all cash, checks and other instruments constituting Collections of Pool
\nReceivables to come into the possession of the Administrative Agent rather than
\nthe Seller. Unless the Required Purchasers determine in their sole discretion
\nthat it would be impractical or inadvisable to do so, the Purchasers must give
\nthe Seller five days prior notice of any such action.<\/p>\n
(b) At any time following the designation of a Collection Agent other
\nthan Georgia-Pacific pursuant to Section 6.01:<\/p>\n
(i) The Administrative Agent may, and at the direction of the Required
\n Purchasers shall, direct the Obligors of Pool Receivables that all payments
\n thereunder be made directly to the Administrative Agent or its designee.<\/p>\n
(ii) The Seller shall, and shall cause each Originator to, at the
\n Administrative Agent’s request and at the expense of the Seller and the<\/p>\n
44<\/p>\n
Originators, notify each Obligor of Pool Receivables of the ownership of
\n Receivable Interests under this Agreement and direct that payments be made
\n directly to the Administrative Agent or a designee of the Administrative
\n Agent approved by the Required Purchasers.<\/p>\n
(iii) The Seller shall, and shall cause each Originator to, at the
\n Administrative Agent’s request (which shall be at the direction of the
\n Required Purchasers) and at the expense of the Seller and the Originators,
\n (A) assemble all of the Records that evidence or relate to the Pool
\n Receivables, and the related Contracts and Related Security, or that are
\n otherwise necessary or desirable to collect the Pool Receivables, and shall
\n make the same available to the Administrative Agent or its designee, at a
\n place selected by the Administrative Agent, and (B) segregate all cash,
\n checks and other instruments received by it from time to time constituting
\n Collections of Pool Receivables in a manner acceptable to the
\n Administrative Agent and the Required Purchasers and, promptly upon
\n receipt, remit all such cash, checks and instruments, duly endorsed or with
\n duly executed instruments of transfer, to the Administrative Agent or its
\n designee.<\/p>\n
(iv) The Seller hereby authorizes the Administrative Agent to take any
\n and all steps in the Seller’s name and on behalf of the Seller that are
\n necessary or desirable, in the determination of the Administrative Agent
\n and the Required Purchasers, to collect amounts due under the Pool
\n Receivables, including, without limitation, endorsing the Seller’s name on
\n checks and other instruments representing Collections of Pool Receivables
\n and enforcing the Pool Receivables and the Related Security and related
\n Contracts.<\/p>\n
SECTION 6.04 Responsibilities of the Seller. Anything herein to the
\ncontrary notwithstanding:<\/p>\n
(a) The Seller shall, and shall cause each Originator to, perform its
\nobligations under the Contracts related to the Pool Receivables to the same
\nextent as if Receivable Interests and Receivables had not been sold and the
\nexercise by the Administrative Agent and by the Purchasers of their rights
\nhereunder shall not release the Collection Agent, the Seller or any Originator
\nfrom any of their duties or obligations with respect to any Pool Receivables or
\nunder the related Contracts; and<\/p>\n
(b) Neither the Administrative Agent nor the Purchasers shall have any
\nobligation or liability with respect to any Pool Receivables or related
\nContracts, nor shall any of them be obligated to perform the obligations of the
\nSeller or any Originator thereunder.<\/p>\n
SECTION 6.05 Further Actions Evidencing Purchases.<\/p>\n
(a) The Seller shall, and shall cause each Originator to, from time to
\ntime, at their expense, promptly execute and deliver all further instruments and
\ndocuments, and take all further actions, that may be necessary or desirable, or
\nthat the Administrative Agent or any Purchaser may reasonably request, to
\nperfect, protect or<\/p>\n
45<\/p>\n
more fully evidence the Receivable Interests purchased hereunder, or to enable
\nany Purchaser or the Administrative Agent to exercise and enforce their
\nrespective rights and remedies hereunder. Without limiting the foregoing, the
\nSeller and each Originator will upon the request of any Purchaser or the
\nAdministrative Agent (i) execute and file such financing or continuation
\nstatements, or amendments thereto, and such other instruments and documents,
\nthat may be necessary or desirable, or that any Purchaser or the Administrative
\nAgent may reasonably request, to perfect, protect or evidence such Receivable
\nInterests; (ii) mark conspicuously each invoice evidencing each Pool Receivable
\nand the related Contract with a legend, acceptable to the Purchasers, evidencing
\nthat Receivable Interests therein have been sold; and (iii) mark its master data
\nprocessing records evidencing such Pool Receivables and related Contracts with a
\nlegend, acceptable to the Purchasers, evidencing that Receivable Interests
\ntherein have been sold; provided that the actions specified in clauses (ii) and
\n(iii) may be directed by the Required Purchasers or the Administrative Agent
\nonly upon the occurrence of an Event of Termination or a Potential Termination
\nEvent.<\/p>\n
(b) The Seller authorizes the Administrative Agent to file financing or
\ncontinuation statements, and amendments thereto, relating to the Pool
\nReceivables and the Related Security, the related Contracts and the Collections
\nwith respect thereto without the signature of the Seller where permitted by law.
\nA photocopy or other reproduction of this Agreement shall be sufficient as a
\nfinancing statement where permitted by law.<\/p>\n
(c) If the Collection Agent fails to perform any of its obligations
\nhereunder, any Purchaser or the Administrative Agent may (but shall not be
\nrequired to) perform, or cause performance of, such obligation; and such
\nPurchaser’s or the Administrative Agent’s costs and expenses incurred in
\nconnection therewith shall be payable by the Seller (if the Collection Agent
\nthat fails to so perform is Georgia-Pacific or an Affiliate thereof) as provided
\nin Section 8.01 or Section 9.04, as applicable.<\/p>\n
SECTION 6.06 Collection Agent Fee. The Collection Agent shall be paid a
\ncollection fee (the “Collection Agent Fee”) of 1% per annum on the average daily
\namount of the Total Aggregate Capital payable monthly in arrears on each
\nSettlement Date. The Collection Agent Fee shall be payable only from Collections
\npursuant to, and subject to the priority of payment set forth in, Section 2.04.<\/p>\n
ARTICLE VII.
\n EVENTS OF TERMINATION<\/p>\n
SECTION 7.01 Events of Termination. If any of the following events
\n(“Events of Termination”) shall occur and be continuing:<\/p>\n
(a) The Seller or the Collection Agent (if Georgia-Pacific or an
\nAffiliate thereof) shall fail (i) to perform or observe any term, covenant or
\nagreement hereunder (other than as referred to in clause (ii) and (iii) of this
\nsubsection (a) or in Sections 5.01(c), 5.01(j) or 5.01(m)) and such failure
\nshall remain unremedied for three Business Days or (ii) to make any payment or
\ndeposit required hereunder on the first Business Day after the due date thereof
\nor (iii) to perform or observe any term, covenant or<\/p>\n
46<\/p>\n
agreement contained in Section 5.01(y) hereof and such failure shall remain
\nunremedied for two Business Days; or<\/p>\n
(b) The Seller or the Collection Agent (if Georgia-Pacific or an
\nAffiliate thereof) shall fail to transfer to the Purchasers when requested any
\nrights pursuant hereto which the Seller or such Collection Agent then has; or<\/p>\n
(c) Any representation or warranty made or deemed made by the Seller or
\nthe Collection Agent (if Georgia-Pacific or an Affiliate thereof) (or any of its
\nResponsible Officers) in this Agreement or by any Originator (or any of its
\nResponsible Officers) in the Transfer Agreement or the Consent and
\nAcknowledgement to which it is a party or in any information or report delivered
\nby a Responsible Officer of the Seller or any Originator or the Collection Agent
\n(if Georgia-Pacific or an Affiliate thereof) pursuant hereto shall prove to have
\nbeen incorrect or untrue when made or deemed made or delivered; or<\/p>\n
(d) The Seller or the Collection Agent (if Georgia-Pacific or an
\nAffiliate thereof) shall fail to perform or observe any term, covenant or
\nagreement contained in Sections 5.01(c), 5.01(j) or 5.01(m) hereof or any term,
\ncovenant or agreement contained in any Transfer Agreement; or<\/p>\n
(e) An Originator shall fail to perform or observe any term, covenant
\nor agreement contained in the Consent and Acknowledgment or the Transfer
\nAgreement to which such Originator is a party (other than a term, covenant or
\nagreement the breach of which would give rise to an Event of Termination
\ndescribed in subsection (h) below), on its part to be performed or observed and
\nany such failure shall remain unremedied for 15 days after the earlier of (i)
\nthe time the Seller or such Originator becomes aware or should have become aware
\nof such failure and (ii) the date written notice thereof shall have been given
\nto the Seller or such Originator, as the case may be, by any Purchaser or the
\nAdministrative Agent; or<\/p>\n
(f) The Seller or any Originator shall fail to pay when due any amount
\nin respect of any Debt and such failure shall continue after any applicable
\ngrace period, or any other event shall occur or condition shall exist in respect
\nof such Debt and shall continue after any applicable grace period, the effect of
\nwhich is to cause (or permit any holder thereof to cause) such Debt to become
\ndue and payable prior to the stated maturity thereof; provided, however, that
\nwith respect to any Originator the amount of such Debt is at least $75,000,000;
\nor<\/p>\n
(g) Any purchase or any reinvestment pursuant hereto shall for any
\nreason (other than pursuant to the terms hereof) cease to create, or any
\nReceivable Interest shall for any reason cease to be, a valid and perfected
\nfirst priority undivided percentage ownership interest in Receivables to the
\nextent of any Purchaser’s Receivable Interest in each applicable Pool Receivable
\nand the Related Security and Collections with respect thereto, or this Agreement
\nshall for any reason cease to evidence the transfer to a Purchaser (or its
\nassignees or transferees) of legal and equitable right, title and interest to,
\nand ownership of, an undivided percentage ownership interest in any Pool
\nReceivable to the extent of such Purchaser’s Receivable Interest or cease to<\/p>\n
47<\/p>\n
evidence in any Purchaser legal and equitable title to, and ownership of, an
\nundivided percentage ownership interest in such Receivable and the Related
\nSecurity and Collection to the extent of the Receivable Interest of such
\nPurchaser, except as may be limited by applicable law with respect to the
\nRelated Security and with respect to Pool Receivables of Government Obligors; or<\/p>\n
(h) Any purchase pursuant to any Transfer Agreement shall for any
\nreason (other than pursuant to the term thereof) cease to create, or an interest
\nin any Receivable shall cease to be, a valid and perfected first priority
\nundivided percentage ownership interest in such Receivable and the Related
\nSecurity and Collections with respect thereto or the Transfer Agreement shall
\nfor any reason cease to evidence the transfer to the Seller of all legal and
\nequitable right, title and interest of the relevant Originator to, and ownership
\nof, an undivided percentage ownership in any Receivable, except as may be
\nlimited by applicable law with respect to the Related Security and with respect
\nto Receivables of Government Obligors; or<\/p>\n
(i) The Seller, any Originator or the Collection Agent (if
\nGeorgia-Pacific or an Affiliate thereof) shall generally not pay its debts as
\nsuch debts become due, or shall admit in writing its inability to pay its debts
\ngenerally, or shall make a general assignment for the benefit of creditors; or
\nany proceeding shall be instituted by or against the Seller, any Originator or
\nthe Collection Agent (if Georgia-Pacific or an Affiliate thereof) seeking to
\nadjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
\nreorganization, arrangement, adjustment, protection, relief, or composition of
\nit or its debts under any law relating to bankruptcy, insolvency or
\nreorganization or relief of debtors, or seeking the entry of an order for relief
\nor the appointment of a receiver, trustee, custodian or other similar official
\nfor it or for any substantial part of its property and, in the case of any such
\nproceeding instituted against it (but not instituted by it), either such
\nproceeding shall remain undismissed or unstayed for a period of 45 days, or any
\nof the actions sought in such proceeding (including an order for relief against,
\nor the appointment of a receiver, trustee, custodian or other similar official
\nfor, it or for any substantial part of its property) shall occur; or the Seller
\nor any Originator shall take any corporate action to authorize any of the
\nactions set forth above in this subsection (i); or<\/p>\n
(j) As of any Settlement Date, the Current Default Ratio shall exceed
\n5%, or the Delinquency Ratio shall exceed 10%, or the Loss-to-Liquidation Ratio
\nshall exceed .35%, or the Dilution Ratio shall exceed 7.5%, or the Average
\nMaturity for the related Settlement Period shall exceed 40 days; or<\/p>\n
(k) There shall have occurred any material adverse change in the
\nfinancial condition or operations of Georgia-Pacific and its subsidiaries, taken
\nas a whole, as they existed as of July 3, 1999; or there shall have occurred any
\nevent which has a reasonable likelihood of having a material adverse effect on
\nthe collectibility of the Pool Receivables generally or any significant portion
\nof the Pool Receivables or the ability of the Seller, any Originator or the
\nCollection Agent to perform its duty to collect Pool Receivables generally or
\notherwise perform its respective obligations hereunder or under any Transfer
\nAgreements or under any Consent and Acknowledgment; or<\/p>\n
48<\/p>\n
(l) The Pension Benefit Guaranty Corporation shall file a notice of
\nlien pursuant to Section 4068 of ERISA with regard to any of the assets of the
\nSeller or any ERISA Affiliate, and such liens have not been suspended or have
\nnot been bonded in the full amount thereof and are not being contested in good
\nfaith by the Seller or such ERISA Affiliate; provided, however, that with
\nrespect to any Originator, the amount of such lien shall be greater than
\n$50,000,000; or<\/p>\n
(m) Georgia-Pacific shall fail to maintain long-term senior unsecured
\ndebt ratings of at least BBB- by S&P and at least Baa3 by Moody’s; or<\/p>\n
(n) There shall have occurred a change of control of the Seller or any
\nOriginator; provided, however, that a change of control of an Originator shall
\nnot be an Event of Termination if after such change of control Georgia-Pacific
\nindirectly controls such Originator. A “change of control” shall mean the
\nfailure of Georgia-Pacific to own directly or indirectly, with respect to the
\nSeller, 100% or, with respect to any Originator, at least 50% of either of the
\nthen outstanding common shares of the Seller or any Originator or the combined
\nvoting rights of the then outstanding voting securities of the Seller or any
\nOriginator, as the case may be; or<\/p>\n
(o) The failure of the Seller and the Required Purchasers to agree on
\nthe amendment of subsection (j) of this Section 7.01 as contemplated by Section
\n2.01(e) upon the Seller’s decision to cease purchasing Receivables from any
\nOriginator, by Section 2.01(f) upon the Seller’s decision to cease purchasing
\nReceivables from any Originator Division, by Section 2.01(g) upon the Seller’s
\ndecision to commence purchasing Receivables from any Originator Division and by
\nSection 2.01(h) upon the sale by Georgia-Pacific of the stock of any Originator,
\nin each case after the expiration of a period of 30 days after such cessation or
\nsuch sale; or<\/p>\n
(p) The occurrence or declaration of an “Event of Termination” under
\nthe Secondary Purchase Agreement, unless the same shall be cured or waived; or<\/p>\n
(q) The occurrence or declaration of an “Event of Termination” under
\nany Transfer Agreement, unless the same shall be cured or waived with the
\nconsent of all of the Purchasers;<\/p>\n
then, and in any such event, at the direction of the Required Purchasers, the
\nAdministrative Agent shall, by notice to the Seller, designate another Person to
\nsucceed Georgia-Pacific as the Collection Agent, subject to the approval of the
\nPurchasers; provided, that automatically upon the occurrence of any event
\n(without any requirement for the passage of time or the giving of notice)
\ndescribed in subsection (i) of this Section 7.01, the Termination Date shall
\noccur. Upon the occurrence of any Event of Termination, the Purchasers and the
\nAdministrative Agent shall have, in addition to the rights and remedies which
\nthey may have under this Agreement, all other rights and remedies provided after
\ndefault under the UCC and under other applicable law, which rights and remedies
\nshall be cumulative.<\/p>\n
49<\/p>\n
ARTICLE VIII.
\n INDEMNIFICATION<\/p>\n
SECTION 8.01 Indemnities by the Seller. Without limiting any other
\nrights that the Administrative Agent or the Purchasers or any Affiliate thereof
\nand their respective officers, directors, employees and agents (each, an
\n“Indemnified Party”) may have hereunder or under applicable law, the Seller
\nhereby agrees to indemnify each Indemnified Party from and against any and all
\nclaims, losses and liabilities (including reasonable attorneys fees and
\nexpenses) (all of the foregoing being collectively referred to as “Indemnified
\nAmounts”) arising out of or resulting from this Agreement or the use of proceeds
\nof purchases or reinvestments or the ownership of Receivable Interests or in
\nrespect of any Receivable or any Contract, excluding, however, (a) Indemnified
\nAmounts to the extent resulting from gross negligence or willful misconduct on
\nthe part of such Indemnified Party, (b) recourse for uncollectible Receivables
\n(except to the extent the Buyer has recourse against the Seller with respect to
\nsuch Receivable on grounds other than the noncollectability of the Receivable)
\nor (c) except as set forth below, any income taxes incurred by such Indemnified
\nParty arising out of or as a result of this Agreement or the ownership of
\nReceivable Interests or in respect of any Receivable or any Contract. Without
\nlimitation of the generality of the foregoing, the Seller shall pay on demand to
\neach Indemnified Party any and all amounts necessary to indemnify such
\nIndemnified Party from and against any and all Indemnified Amounts relating to
\nor resulting from any of the following:<\/p>\n
(i) the creation of a Receivable Interest in any Pool Receivable which
\n is not at the date of the creation of such Receivable Interest an Eligible
\n Receivable;<\/p>\n
(ii) reliance on any representation or warranty made or deemed made by
\n the Seller or any Originator (or any of their respective Responsible
\n Officers) or any statement made by any Responsible Officer of the Seller or
\n any Originator under or in connection with this Agreement which shall have
\n been incorrect when made;<\/p>\n
(iii) the failure by the Seller or any Originator to comply with any
\n applicable law, rule or regulation;<\/p>\n
(iv) the failure to vest in a Purchaser an undivided percentage
\n ownership interest, to the extent of such Purchaser’s Receivable Interest,
\n in the Receivables (including, without limitation, Receivables of
\n Government Obligors) in, or purporting to be in, the Receivables Pool and
\n the Related Security and Collections in respect thereof, free and clear of
\n any Adverse Claim other than as authorized hereunder;<\/p>\n
(v) the failure to vest in the Seller all right, title and interest in
\n the Receivables purchased by the Seller from any Originator pursuant to a
\n Transfer Agreement, free and clear of any Adverse Claim other than as
\n authorized hereunder;<\/p>\n
50<\/p>\n
(vi) the failure to have filed, or any delay in filing, financing
\n statements or other similar instruments or documents under the UCC of any
\n applicable jurisdiction, under applicable law with respect to the
\n assignment of Receivables of Government Obligors or other applicable laws
\n with respect to any Receivables in, or purporting to be in, the Receivables
\n Pool and the Related Security and Collections in respect thereof, whether
\n at the time of any purchase or reinvestment or at any subsequent time;<\/p>\n
(vii) any dispute, claim, offset or defense (other than discharge in
\n bankruptcy of the Obligor) of the Obligor to the payment of any Receivable
\n in, or purporting to be in, the Receivables Pool (including, without
\n limitation, a defense based on such Receivable or the related Contract not
\n being a legal, valid and binding obligation of such Obligor enforceable
\n against it in accordance with its terms), or any other claim resulting from
\n the sale of the merchandise or service related to such Receivable or the
\n furnishing or failure to furnish such merchandise or services;<\/p>\n
(viii) any failure of the Seller or the Collection Agent (if
\n Georgia-Pacific or an Affiliate thereof), to perform their respective
\n duties or obligations in accordance with the provisions of this Agreement;<\/p>\n
(ix) any products liability claim arising out of or in connection with
\n merchandise, insurance or services which are the subject of any Contract;<\/p>\n
(x) any loss incurred by any Purchaser as a result of the Outstanding
\n Balance of all Pool Receivables from the same Obligor, expressed as a
\n percentage of the aggregate Outstanding Balance of Eligible Receivables,
\n being in excess of the Concentration Limit or, if applicable, Special
\n Concentration Limit for such Obligor;<\/p>\n
(xi) the commingling of Collections of Pool Receivables at any time
\n with other funds;<\/p>\n
(xii) any action or omission by the Seller or the Collection Agent (if
\n Georgia-Pacific or an Affiliate thereof) reducing or impairing the rights
\n of a Purchaser with respect to any Pool Receivable or the value of any Pool
\n Receivable, except in accordance with the Credit and Collection Policy;<\/p>\n
(xiii) any failure of the Seller to give reasonably equivalent value to
\n any Originator in consideration of the transfer by such Originator to the
\n Seller of any Receivables, or any attempt by any Person to void any such
\n transfer under statutory provisions or common law or equitable action,
\n including, without limitation, any provision of the Bankruptcy Code;<\/p>\n
(xiv) any reductions in the amount of a Pool Receivable the Obligor of
\n which is a Government Obligor, and the Related Security and Collections
\n with respect thereto, as the result of appropriation by the government or
\n the inability to collect any amount from a Government Obligor;<\/p>\n
51<\/p>\n
(xv) any inability to collect the full Outstanding Balance of a Pool
\n Receivable which was entitled to an Administrative Priority as a result of
\n the Obligor’s bankruptcy and which was included as an Eligible Receivable
\n as a result of such Administrative Priority;<\/p>\n
(xvi) any investigation, litigation or proceeding related to or arising
\n from this Agreement, the transactions contemplated hereby, the use of the
\n proceeds of the Purchase, the ownership of the Receivable Interests or any
\n Pool Receivable, Related Security or Contract or any other investigation,
\n litigation or proceeding relating to the Seller or any Originator in which
\n any Indemnified Party becomes involved as a result of any of the
\n transactions contemplated hereby;<\/p>\n
(xvii) all losses, expenses and liabilities, if any (including, without
\n limitation, any loss or expense incurred by reason of the liquidation or
\n reemployment of deposits or other funds acquired by any Purchaser in
\n connection with such Purchaser’s funding or maintenance of the Receivable
\n Interests) which such Purchaser may sustain as the result of the
\n termination or reduction of any Receivable Interest or the failure by the
\n Seller or the Collection Agent (if Georgia-Pacific or an Affiliate thereof)
\n to make any payment of Capital when due;<\/p>\n
(xviii) any inability to litigate any claim against any Obligor in
\n respect of any Pool Receivable as a result of such Obligor being immune
\n from civil and commercial law and suit on the grounds of sovereignty or
\n otherwise from any legal action, suit or proceeding;<\/p>\n
(xix) any Event of Termination described in clause (i) of Section 7.01;<\/p>\n
(xx) a Year 2000 Problem with respect to hardware or software systems
\n used by the Seller or the Collection Agent; or<\/p>\n
(xxi) any loss incurred by any Purchaser on any Pool Receivable of a
\n Government Obligor.<\/p>\n
SECTION 8.02 Contribution. If for any reason the indemnification
\nprovided above in Section 8.01 (and subject to the exceptions set forth therein)
\nis unavailable to an Indemnified Party or is insufficient to hold an Indemnified
\nParty harmless, then the Seller shall contribute to the amount paid or payable
\nby such Indemnified Party as a result of such loss, claim or liability in such
\nproportion as is appropriate to reflect not only the relative benefits received
\nby such Indemnified Party on the one hand and the Seller on the other hand but
\nalso the relative fault of such Indemnified Party as well as any other relevant
\nequitable considerations.<\/p>\n
ARTICLE IX.
\n THE ADMINISTRATIVE AGENT<\/p>\n
SECTION 9.01 Authorization and Action. Each Purchaser hereby appoints
\nand authorizes the Administrative Agent to take such action as agent on its<\/p>\n
52<\/p>\n
behalf and to exercise such powers under this Agreement as are delegated to the
\nAdministrative Agent by the terms hereof together with such powers as are
\nreasonably incidental thereto. As to any matters not expressly provided for by
\nthis Agreement, the Administrative Agent shall not be required to exercise any
\ndiscretion or take any action, but shall be required to act or to refrain from
\nacting (and shall be fully protected in so acting or refraining from acting)
\nupon the instructions of any Purchaser, the Required Purchasers or all of the
\nPurchasers (and all references in this Agreement to the “Purchasers” shall be
\ndeemed to mean “all of the Purchasers”) as provided by this Agreement and such
\ninstructions shall be binding upon all parties hereto and all assignees of the
\nPurchasers; provided, however, that the Administrative Agent shall not be
\nrequired to take any action which exposes the Administrative Agent to personal
\nliability or which is contrary to this Agreement or applicable law. The
\nAdministrative Agent agrees to give to each Purchaser prompt notice of each
\nnotice given to it by the Seller, or by it to the Seller, pursuant to the terms
\nof this Agreement. The appointment and authority of the Administrative Agent
\nhereunder shall terminate at the later to occur of (i) the payment to (A) each
\nPurchaser of its Aggregate Capital, accrued and unpaid Yield and all other
\namounts due to such Purchaser hereunder and (B) the Administrative Agent of all
\namounts due hereunder and (ii) the Facility Termination Date.<\/p>\n
SECTION 9.02 UCC Filings. The Purchasers and the Seller expressly
\nrecognize and agree that the Administrative Agent may be listed as the assignee
\nor secured party of record on the various UCC filings required to be made
\nhereunder in order to perfect the transfer of the Receivable Interests from the
\nSeller to the Purchasers, that such listing shall be for administrative
\nconvenience only in creating a record or nominee owner to take certain actions
\nhereunder on behalf of the Purchasers and that such listing will not affect in
\nany way the status of the Purchasers as the beneficial owners of the Receivable
\nInterests. In addition, such listing shall impose no duties on the
\nAdministrative Agent other than those expressly and specifically undertaken in
\naccordance with the provisions of this Article IX. In furtherance of the
\nforegoing, each Purchaser shall be entitled to enforce its rights created under
\nthis Agreement without the need to conduct such enforcement through the
\nAdministrative Agent except as provided herein.<\/p>\n
SECTION 9.03 Administrative Agent’s Reliance, Etc. Neither the
\nAdministrative Agent nor any of its directors, officers, agents or employees
\nshall be liable for any action taken or omitted to be taken by it or them under
\nor in connection with this Agreement, except for its or their own gross
\nnegligence or willful misconduct. Without limitation of the generality of the
\nforegoing, the Administrative Agent (i) may consult with legal counsel
\n(including counsel for the Seller), independent public accountants and other
\nexperts selected by it and shall not be liable for any action taken or omitted
\nto be taken in good faith by it in accordance with the advice of such counsel,
\naccountants or experts; (ii) makes no warranty or representation to any Person
\nand shall not be responsible to any Person for any statements, warranties or
\nrepresentations (whether written or oral) made in or in connection with this
\nAgreement; (iii) shall not have any duty to ascertain or to inquire as to the
\nperformance or observance of any of the terms, covenants or conditions of this
\nAgreement on the part of the Seller, or of any<\/p>\n
53<\/p>\n
Transfer Agreement on the part of the Seller or the Originator a party thereto,
\nor to inspect the property (including the books and records) of the Seller or
\nany Originator; (iv) shall not be responsible to any Purchaser for the due
\nexecution, legality, validity, enforceability, genuineness, sufficiency or value
\nof this Agreement or any Transfer Agreement or any other instrument or document
\nfurnished pursuant hereto; and (v) shall incur no liability under or in respect
\nof this Agreement by acting upon any notice, consent, certificate or other
\ninstrument or writing (which may be by facsimile, telegram, cable or telex)
\nbelieved by it to be genuine and signed or sent by the proper party or parties.<\/p>\n
SECTION 9.04 CIBC and Affiliates. With respect to any Pool Receivable
\nowned by CIBC, CIBC shall have the same rights and powers under this Agreement
\nand any document delivered pursuant hereto as would any Purchaser and may
\nexercise the same as though it were not the Administrative Agent. CIBC and its
\nAffiliates may generally engage in any kind of business with the Seller, any
\nOriginator or any Obligor and any of their respective Affiliates and any Person
\nwho may do business with or own securities of the Seller, any Originator or any
\nObligor or any of their respective Affiliates, all as if CIBC were not the
\nAdministrative Agent and without any duty to account therefor to any Purchaser.<\/p>\n
SECTION 9.05 Purchasers’ Purchase Decisions. Each Purchaser
\nacknowledges that it has, independently and without reliance upon the
\nAdministrative Agent, any of its Affiliates or any other Purchaser and based on
\nsuch documents and information as it has deemed appropriate, made its own
\nevaluation and decision to enter into this Agreement and, if it so determines,
\nto purchase undivided ownership interests in Pool Receivables hereunder. Each
\nPurchaser also acknowledges that it will, independently and without reliance
\nupon the Administrative Agent, any of its Affiliates or any other Purchaser and
\nbased on such documents and information as it shall deem appropriate at the
\ntime, continue to make its own decisions in taking or not taking action under
\nthis Agreement.<\/p>\n
SECTION 9.06 Successor Administrative Agent. The Administrative Agent
\nmay resign at any time by giving 30 days’ written notice thereof to the
\nPurchasers, the Seller, the Collection Agent and the Secondary Purchasers and
\nmay be removed at any time with or without cause by the Required Purchasers.
\nUpon any such resignation or removal, the Purchasers shall have the right to
\nappoint a successor Administrative Agent approved by the Seller (which approval
\nwill not be unreasonably withheld or delayed). If no successor Administrative
\nAgent shall have been so appointed by the Purchasers, and shall have accepted
\nsuch appointment, within 30 days after the retiring Administrative Agent’s
\ngiving of notice of resignation or the Purchasers’ removal of the Administrative
\nAgent, then Georgia-Pacific shall appoint a Secondary Purchaser or such other
\nPerson approved by the Purchasers (which approval will not be unreasonably
\nwithheld or delayed) as a successor Administrative Agent. If such successor
\nAdministrative Agent is not a Secondary Purchaser, such successor Administrative
\nAgent shall be (a) either (i) a commercial bank having a combined capital and
\nsurplus of at least $250,000,000 or (ii) an Affiliate of such bank and (b)
\nexperienced in the types of transactions contemplated by this Agreement. Upon
\nthe acceptance of any<\/p>\n
54<\/p>\n
appointment as Administrative Agent hereunder by a successor Administrative
\nAgent, such successor Administrative Agent shall thereupon succeed to and become
\nvested with all the rights, powers, privileges and duties of the retiring
\nAdministrative Agent, and the retiring Administrative Agent shall be discharged
\nfrom its duties and obligations under this Agreement. After any retiring
\nAdministrative Agent’s resignation or removal hereunder as Administrative Agent,
\nthe provisions of this Article IX shall inure to its benefit as to any actions
\ntaken or omitted to be taken by it while it was Administrative Agent under this
\nAgreement.<\/p>\n
ARTICLE X.
\n ASSIGNMENT OF RECEIVABLE INTERESTS<\/p>\n
SECTION 10.01 Assignment.<\/p>\n
(a) Each Purchaser (with respect to any Receivable Interest) may (i)
\nwithout the consent of the Seller, assign to another Purchaser, any Secondary
\nPurchaser, or to any vehicle organized by a Secondary Purchaser which is rated
\nat least A-1 by S&P and P-1 by Moody’s and (ii) with the prior written consent
\nof the Seller (which consent shall not be unreasonably withheld or delayed), to
\nany other Person (such Person, and the Persons described in clause (i) above,
\nreferred to herein as “Assignees”), and any such Assignee, may, without the
\nwritten consent of the Seller, assign to any Person described in clause (i)
\nhereof and may, with the prior written consent of the Seller (which consent
\nshall not be unreasonably withheld or delayed), assign to any other Person, any
\nReceivable Interest. Upon any assignment of a Receivable Interest, (i) the
\nAssignee shall become the owner of such Receivable Interest for all purposes of
\nthis Agreement and (ii) the assignor thereof (the “Assignor”) shall relinquish
\nits rights with respect to such Receivable Interest for all purposes of this
\nAgreement. Any assignments hereunder shall be upon such terms and conditions as
\nthe Assignor and the Assignee may mutually agree. The parties thereto shall
\ndeliver to the Administrative Agent an assignment agreement, in substantially
\nthe form of Exhibit D hereto (an “Assignment”), duly executed by such parties,
\nand such Assignor shall promptly execute and deliver all further instruments and
\ndocuments, and take all further action, that the Assignee may reasonably request
\nin order to perfect, protect or more fully evidence the Assignee’s right, title
\nand interest in and to any Receivable Interest assigned hereunder, and to enable
\nthe Assignee to exercise or enforce any rights hereunder. Upon any assignment
\npursuant to this Section 10.01, the Assignee thereof shall have all of the
\nrights and obligations (and only such rights and obligations) of a Purchaser
\nhereunder, and shall be subject to the same terms and conditions hereunder. The
\nAdministrative Agent shall provide notice to the Seller of any assignment
\nhereunder.<\/p>\n
SECTION 10.02 Effects of Assignment. By executing and delivering an
\nAssignment, the Assignor thereunder and the Assignee thereunder confirm to and
\nagree with each other and the other parties hereto as follows: (i) other than as
\nprovided in such Assignment, the Assignor makes no representation or warranty
\nand assumes no responsibility with respect to any statements, warranties or
\nrepresentations made in or in connection with this Agreement or the execution,
\nlegality, validity, enforceability, genuineness, sufficiency or value of this
\nAgreement, or any other agreement, instrument or document furnished pursuant
\nhereto; (ii) the Assignor makes no representation or<\/p>\n
55<\/p>\n
warranty and assumes no responsibility with respect to the financial condition
\nof the Seller or any Originator or the performance or observance by the Seller
\nor any Originator of any of its obligations under this Agreement (in the case of
\nthe Seller) or the Transfer Agreements (in the case of the Seller and the
\nOriginators) or other agreement, instrument or document furnished pursuant
\nhereto; (iii) such Assignee confirms that it has received a copy of this
\nAgreement, together with copies of the financial statements referred to in
\nSection 4.01 and such other agreements, documents and information as it has
\ndeemed appropriate to make its own credit analysis and decision to enter into
\nsuch Assignment and to purchaser the pertinent Receivable Interests; (iv) such
\nAssignee will, independently and without reliance upon the Administrative Agent,
\nany Purchaser, any Secondary Purchaser or any of their Affiliates or such
\nAssignor and based on such agreements, documents and information as it shall
\ndeem appropriate at the time, continue to make its own credit decisions in
\ntaking or not taking action under this Agreement; (v) such Assignee appoints and
\nauthorizes the Administrative Agent to take such action as agent on its behalf
\nand to exercise such powers under this Agreement as are delegated to the
\nAdministrative Agent by the terms hereof, together with such powers as are
\nreasonably incidental thereto; (vi) such Assignee appoints as its agent the
\nCollection Agent from time to time designated pursuant to Section 6.01 to
\nenforce its respective rights and interests in and under the pertinent
\nReceivable Interests and the Related Security and related Contracts; and (vii)
\nsuch Assignee agrees that it will not institute against any Purchaser any
\nproceeding of the type referred to in Section 7.01(i).<\/p>\n
ARTICLE XI.
\n MISCELLANEOUS<\/p>\n
SECTION 11.01 Amendments, Etc. No amendment or waiver of any provision
\nof this Agreement or consent to any departure by the Seller or the Collection
\nAgent therefrom shall be effective unless in a writing signed by all of the
\nPurchasers or, where permitted under this Agreement, the Required Purchasers,
\nand then such amendment, waiver or consent shall be effective only in the
\nspecific instance and for the specific purpose for which given; provided,
\nhowever, that no amendment or waiver of Section 6.03 or of any other provision
\nof this Agreement which affects the rights or obligations of the Administrative
\nAgent shall be effective unless signed by the Administrative Agent. No failure
\non the part of the Purchasers or the Administrative Agent to exercise, and no
\ndelay in exercising, any right hereunder shall operate as a waiver thereof; nor
\nshall any single or partial exercise of any right hereunder preclude any other
\nor further exercise thereof or the exercise of any other right.<\/p>\n
SECTION 11.02 Notices, Etc. All notices and other communications
\nhereunder shall, unless otherwise stated herein, be in writing (including
\nfacsimile communication) and shall be delivered or sent by facsimile, to each
\nparty hereto, at its address set forth under its name on the signature pages
\nhereof or at such other address as shall be designated by such party in a
\nwritten notice to the other parties hereto. Notices and communications by
\nfacsimile shall be effective when sent, and notices and communications sent by
\nother means shall be effective when received.<\/p>\n
56<\/p>\n
SECTION 11.03 Assignability; Termination.<\/p>\n
(a) This Agreement and each Purchaser’s rights herein (including
\nownership of each Receivable Interest) shall be assignable by such Purchaser and
\nits respective successors and assigns in accordance with Section 10.01. The term
\n“Purchaser” shall include any owner by assignment or otherwise of a Receivable
\nInterest but shall not include any Person to whom a participation is granted.
\nThe Seller may not assign its rights hereunder or any interest herein without
\nthe prior written consent of the Purchasers.<\/p>\n
(b) Any Purchaser may grant participations to any Person without the
\nconsent or knowledge of the Seller, any other Purchaser or the Administrative
\nAgent; provided, that such grant will not affect the obligation, if any, of such
\nPurchaser hereunder nor the obligations of the Seller hereunder.<\/p>\n
(c) The provisions of Sections 8.01, 11.04, 11.05, 11.06 and 11.07
\nsurvive any termination of this Agreement.<\/p>\n
SECTION 11.04 Costs, Expenses and Taxes.<\/p>\n
(a) In addition to the rights of indemnification granted under Section
\n8.01 hereof, the Seller agrees to pay on demand all reasonable costs and
\nexpenses in connection with the preparation, execution, delivery and
\nadministration (including periodic auditing of Pool Receivables) of this
\nAgreement and the other documents and agreements to be delivered hereunder,
\nincluding, without limitation, (i) the reasonable fees and expenses of Latham & Watkins, counsel for the Purchasers, actually incurred with respect to the
\npreparation, execution and delivery of this Agreement, the Secondary Purchase
\nAgreement and the other documents and agreements to be delivered hereunder or
\nthereunder; (ii) the reasonable fees and out-of-pocket expenses of counsel for
\nthe Administrative Agent actually incurred with respect to administration of
\nthis Agreement, including without limitation, advising the Administrative Agent
\nas to its rights and remedies hereunder; and (iii) all costs and expenses, if
\nany (including reasonable counsel fees and expenses), in connection with the
\nenforcement or amendment of this Agreement and the other documents and
\nagreements to be delivered hereunder.<\/p>\n
(b) In addition, the Seller shall pay on demand (i) any and all
\nreasonable costs and expenses actually incurred by any issuing and paying agent
\nor other Person responsible for the administration of each Purchaser’s
\ncommercial paper program in connection with the preparation, completion,
\nissuance, delivery or payment of commercial paper notes issued to fund the
\npurchase or maintenance of any Receivable Interest, and (ii) any and all stamp
\nand other taxes and fees payable in connection with the execution, delivery,
\nfiling and recording of this Agreement or the other documents or agreements to
\nbe delivered hereunder, and agrees to save each Indemnified Party harmless from
\nand against any liabilities with respect to or resulting from any delay in
\npaying or omission to pay such taxes and fees.<\/p>\n
57<\/p>\n
(c) The Seller also shall pay on demand all other reasonable costs and
\nexpenses and all taxes (excluding income taxes) actually incurred by a Purchaser
\nor any stockholder of a Purchaser (“Other Costs”), including (i) the costs of
\nauditing such Purchaser’s books by certified public accountants and of rating
\nsuch Purchaser’s commercial paper by independent financial rating agencies, (ii)
\nthe taxes (excluding income taxes) resulting from such Purchaser’s operations
\nand (iii) the reasonable fees and out-of-pocket expenses of counsel for such
\nPurchaser or any counsel for any shareholder of such Purchaser with respect to
\nadvising such Purchaser or shareholder as to rights and remedies under this
\nAgreement, the enforcement of this Agreement or advising such Purchaser or
\nshareholder as to matters relating to such Purchaser’s operations; provided,
\nthat the Seller and any other persons who from time to time sell receivables or
\ninterests therein to such Purchaser (“Other Sellers”) each shall be liable for
\nsuch Other Costs ratably in accordance with the usage under their respective
\nfacilities; provided, further, that (i) if such Other Costs are attributable to
\nthe Seller and not attributable to any Other Seller, the Seller shall be solely
\nliable for such Other Costs and (ii) if such Other Costs are attributable to any
\nOther Seller and not attributable to the Seller in any way, the Seller shall not
\nbe liable for any of such Other Costs.<\/p>\n
SECTION 11.05 No Proceedings. The Seller, the Collection Agent and the
\nAdministrative Agent each hereby agrees that it will not institute or join
\nagainst any Purchaser any proceeding of the type referred to in Section 7.01(i).<\/p>\n
SECTION 11.06 Confidentiality. Unless otherwise required by applicable
\nlaw, rule or regulation or by court order or process, the Seller and the
\nCollection Agent agree to maintain the confidentiality of this Agreement (and
\nall drafts thereof) in communications with third parties and otherwise;
\nprovided, that this Agreement may be disclosed to the Seller’s and the
\nCollection Agent’s legal counsel and auditors if they agree to hold it
\nconfidential.<\/p>\n
SECTION 11.07 No Recourse. The obligations of each Purchaser under this
\nAgreement or any other agreement, instrument, document or certificate executed
\nand delivered by or issued by such Purchaser or any officer thereof in
\nconnection herewith are solely the corporate obligations of such Purchaser. No
\nrecourse shall be had for payment of any fee or other obligation or claim
\narising out of or relating to this Agreement or any other agreement, instrument,
\ndocument or certificate executed and delivered or issued by such Purchaser or
\nany officer in connection herewith, against any stockholder, employee, officer,
\ndirector or incorporator of such Purchaser. The provisions of this Section 11.07
\nshall survive the termination of this Agreement.<\/p>\n
SECTION 11.08 Governing Law; Execution in Counterparts.<\/p>\n
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
\nWITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING ITS APPLICABLE CONFLICT OF
\nLAWS RULES).<\/p>\n
(b) This Agreement may be executed in any number of counterparts, each
\nof which when so executed shall be deemed to be an original and all of which
\nwhen taken together shall constitute one and the same agreement.<\/p>\n
58<\/p>\n
SECTION 11.09 Construction of Agreement. It is the intention of each
\nTransfer Agreement that the conveyance by the applicable Originator to the
\nSeller of Receivables shall constitute a purchase and sale and not a secured
\nloan. It is the intention of this Agreement that the Purchases and reinvestments
\nshall convey to the Purchasers, to the extent of their Receivable Interests,
\nundivided ownership interests in the Pool Receivables and that each such
\ntransaction shall constitute a purchase and sale and not a secured loan. If,
\nnotwithstanding such intention, the conveyance of Receivables from any
\nOriginator to the Seller pursuant to a Transfer Agreement shall ever be
\ncharacterized as a secured loan and not a sale, then the Seller shall be deemed
\nto have transferred to the Purchasers, in addition to the Receivable Interests,
\nall of the Seller’s right, title and interest in, to and under the obligations
\nof such Originator deemed to be secured by a pledge of such Receivables, and, in
\nsuch event, this Agreement and the filings of the UCC statements referred to in
\nSection 3.01(b) shall be deemed to have granted (subject to the exceptions set
\nforth in Section 4.01 hereof), to the Purchasers a duly perfected security
\ninterest prior to all other liens on and security interests in all of the
\nSeller’s right, title, and interest in, to and under the obligations of such
\nOriginator to the Seller deemed to be secured by such pledge, and the
\nAdministrative Agent shall be deemed to be an independent custodian for purposes
\nof perfection of the security interest granted to the Seller. If the conveyance
\nof the Receivable Interests from the Seller to the Purchasers shall ever be
\ncharacterized as a secured loan and not a sale, it is the intention of this
\nAgreement that this Agreement shall constitute a security agreement under
\napplicable law, and that the Seller shall be deemed to have granted to the
\nPurchasers a duly perfected security interest in all of the Seller’s right,
\ntitle and interest in, to and under the Pool Receivables, all payments on or
\nwith respect to such Pool Receivables, all other rights relating to and payments
\nmade in respect of the Pool Receivables, and all proceeds of any thereof prior
\nto all other liens on and security interests therein.<\/p>\n
59<\/p>\n
IN WITNESS WHEREOF, the parties have caused this Agreement to
\nbe executed by their respective officers thereunto duly authorized, as of the
\ndate first above written.<\/p>\n
SELLER: G-P RECEIVABLES, INC.<\/p>\n
By: \/s\/ Danny W. Huff
\n —————————-
\n Treasurer<\/p>\n
133 Peachtree Street, N.E.
\n Atlanta, Georgia 30348-5605
\n Attention: Treasurer
\n Facsimile No.: (404) 827-7076<\/p>\n
COLLECTION AGENT: GEORGIA-PACIFIC CORPORATION<\/p>\n
By: \/s\/ Danny W. Huff
\n —————————–
\n Name: Danny W. Huff
\n Title: Vice President
\n and Treasurer<\/p>\n
133 Peachtree Street, N.E.
\n Atlanta, Georgia 30348-5605
\n Attention: Treasurer
\n Facsimile No.: (404) 827-7076<\/p>\n
PURCHASERS: ASSET SECURITIZATION COOPERATIVE
\n CORPORATION<\/p>\n
By: \/s\/ Dean Kurdyla
\n —————————–
\n Name: Dean Durdyla
\n Title: VP, Controller<\/p>\n
c\/o Canadian Imperial Bank of
\n Commerce
\n 425 Lexington Avenue
\n New York, New York 10017
\n Attention: President
\n Facsimile No.: (212) 856-3643<\/p>\n
CORPORATE ASSET FUNDING COMPANY,
\n INC.
\n By: CITICORP NORTH AMERICA, INC.,
\n AS ATTORNEY-IN-FACT<\/p>\n
By: \/s\/ Nancy Georgi Free
\n —————————–
\n Name: Nancy Georgi Free
\n Title: Vice President<\/p>\n
500 W. Madison St., 7th Floor
\n Chicago, Illinois, 60661
\n Attention: Global Securitization
\n Department
\n Facsimile No.: (312) 627-3771<\/p>\n
FALCON ASSET SECURITIZATION
\n CORPORATION<\/p>\n
By: \/s\/ Julie C. Benda
\n ——————————
\n Authorized Signatory<\/p>\n
c\/o Bank One, NA (Chicago Office)
\n 1 Bank One Plaza
\n Suite 0079, 17th Floor
\n Chicago, Illinois 60670
\n Attention: Julie Benda
\n Facsimile No.: (312) 732-2231<\/p>\n
ADMINISTRATIVE
\n AGENT: CANADIAN IMPERIAL BANK OF
\n COMMERCE,
\n as Administrative Agent<\/p>\n
By: \/s\/ John Gevlin
\n ——————————
\n Authorized Signatory<\/p>\n
425 Lexington Avenue
\n New York, New York 10017
\n Attention: Asset Securitization
\n Group
\n Facsimile No.: (212) 856-3643<\/p>\n
SCHEDULE I<\/p>\n
LOCK-BOX BANKS<\/p>\n
[List names and addresses of all Lock-Box Banks and account
\nnumbers of all Lock-Box Accounts of the Seller and the Originators at such
\nLock-Box Banks.]<\/p>\n
SCHEDULE II<\/p>\n
DEPOSITARY BANKS<\/p>\n
[List names and addresses of all Depositary Banks and account
\nnumbers of all Depositary Accounts of the Seller and the Originators at such
\nDepositary Banks.]<\/p>\n
SCHEDULE III<\/p>\n
CONCENTRATION BANKS<\/p>\n
[List names and addresses of all Concentration Banks and
\naccount numbers of all Concentration Accounts of the Seller and the Originators
\nat such Concentration Banks.]<\/p>\n
SCHEDULE IV<\/p>\n
CREDIT AND COLLECTION POLICY<\/p>\n
SCHEDULE V<\/p>\n
ORIGINATORS<\/p>\n
SCHEDULE VI<\/p>\n
GEORGIA-PACIFIC’S INTERESTS IN ORIGINATORS<\/p>\n
[List each Originator and the percentage of issued and outstanding common stock
\nof such Originator owned directly and indirectly by Georgia-Pacific.]<\/p>\n
Originator Direct Indirect
\n ———- —— ——–<\/p>\n
EXHIBIT A<\/p>\n
[FORM OF INVESTOR REPORT]<\/p>\n
EXHIBIT B<\/p>\n
[FORM OF LOCK-BOX AGREEMENT]<\/p>\n
________________, 19__<\/p>\n
[Name and Address of Lock-Box
\n Bank]<\/p>\n
Gentlemen:<\/p>\n
We refer to lock box account[s] number[s]. _______________
\nmaintained with you (the “Lock-Box Account[s]”) by us, [Seller or Originator]
\n(hereinafter, sometimes, the “Company”). We have entered into certain agreements
\nwith [Canadian Imperial Bank of Commerce, Atlanta Agency], as administrative
\nagent (in such capacity, the “Administrative Agent”) for Asset Securitization
\nCooperative Corporation, Corporate Asset Funding Company, Inc. and Falcon Asset
\nSecuritization Corporation, which require the execution and delivery of this
\nagreement by you.<\/p>\n
By signing this agreement, you agree that on and after
\ndelivery to you of a letter in the form of Attachment A hereto, the Lock-Box
\nAccount[s] shall be maintained by you for the benefit of, and the amounts from
\ntime to time therein held by you as agent for, the Administrative Agent on the
\nterms provided herein. Until the time of delivery of such letter, the Lock-Box
\nAccount[s] are to be processed in accordance with the standard procedures
\ncurrently in effect. All service charges and fees with respect to the Lock-Box
\nAccount[s] incurred by the Company shall be payable as currently arranged.<\/p>\n
No changes shall be made by you and us to any agreement or
\ninstructions regarding the Lock-Box Account[s] without the Administrative
\nAgent’s prior written consent. Further, it is our understanding that you agree
\nto the following: you shall maintain the Lock-Box Account[s] as [a] segregated
\naccount[s] from the Company’s other accounts maintained with you, and you shall
\nrefrain from commingling the funds deposited in such account with any other
\nfunds of the Company; and that the location(s) of the Lock-Box Account(s) shall
\nnot be changed without the consent of the Administrative Agent.<\/p>\n
Upon delivery to you of a letter in the form of Attachment A
\nhereto, the Lock-Box Account[s] shall be under the sole dominion and control of
\nthe Administrative Agent and be subject to written instructions from an officer
\nof the Administrative Agent. Once you have received such letter from the
\nAdministrative Agent, you shall cooperate with the Administrative Agent in
\ntaking control of the Lock-Box Account[s].<\/p>\n
Notice from the Administrative Agent may be personally served,
\nsent by telex, facsimile or United States mail, certified return receipt
\nrequested, to the address, telex or facsimile number set forth under your
\nsignature to this agreement (or to such other address, telex or facsimile number
\nas you shall notify the Administrative Agent in writing). If notice is given by
\ntelex or facsimile, it will be deemed to have been received<\/p>\n
when sent and the answerback or other form of confirmation received. All other
\nnotices will be deemed to have been received when actually received, or in the
\ncase of personal delivery, delivered. All notices shall be effective within one
\nbusiness day following receipt. Notice from the Administrative Agent will be
\nsigned by an authorized signatory of the Administrative Agent as appears in the
\nAdministrative Agent’s then current signature book. Instructions from the
\nAdministrative Agent may include, but shall not be limited to:<\/p>\n
(a) Notice of the establishment of a concentration account into
\nwhich all monies collected in the Lock-Box Account[s] shall thereafter be
\ntransferred. Such transfers will be in accordance with your current availability
\nschedule for business checks and will encompass all collected deposits less any
\ndeductions for returned items. You may be directed, upon instructions from the
\nAdministrative Agent, to transfer into such concentration account all (or that
\nportion thereof as is specified in the instructions from the Administrative
\nAgent) of the proceeds of the cash, checks, drafts or other instruments
\ndeposited into the Lock-Box Account(s) within [ ] business days of receipt by
\nyou of such items. Transfers between the Lock-Box Account[s] and the
\nconcentration account may be carried out using either Federal Funds transfers or
\nAutomated Clearing House entries.<\/p>\n
(b) The requirement of preparation of duplicate monthly bank
\nstatements for the Lock-Box Account[s] for the Administrative Agent’s audit
\npurposes mailed directly to an address specified by the Administrative Agent.<\/p>\n
By signing this agreement, you agree that you shall not make
\nany charges or debits to the Lock-Box Accounts[s], or exercise any right of
\nset-off, banker’s lien or any other right in favor of any person other than the
\nAdministrative Agent, the Purchasers and the Secondary Purchasers with respect
\nthereto except as provided herein. The Company and the Administrative Agent
\nagree that you may debit the Lock-Box Account[s] for any items deposited in the
\nLock-Box Account[s] which may be returned or otherwise not incurred by you in
\nproviding lock-box services or otherwise in connection herewith; you may charge
\nthe Lock-Box Account[s] as permitted herein in accordance with your customary
\npractice but only after attempting to recover funds by debit to other accounts
\nmaintained by the Company with you.<\/p>\n
You may terminate this agreement only upon thirty days prior
\nwritten notice to that effect to the Administrative Agent, by cancelling the
\nLock-Box Account[s] maintained with you. Incoming mail addressed to the closed
\nLock-Box(es) shall be forwarded in accordance with the Administrative Agent’s
\ninstructions. This agreement may also be terminated upon written notice to you
\nby the Administrative Agent stating that the agreements referenced in the first
\nparagraph hereof pursuant to which this agreement was obtained are no longer in
\neffect. Except as otherwise provided in this paragraph, this agreement may not
\nbe terminated or amended without the written consent of the Administrative
\nAgent.<\/p>\n
2<\/p>\n
This agreement shall inure to the benefit of and shall be
\nbinding upon the respective successors and assigns of the parties hereto, but it
\nmay not be assigned in whole or in part by any party without the prior written
\nconsent of the other parties.<\/p>\n
Very truly yours,<\/p>\n
[SELLER OR ORIGINATOR]<\/p>\n
By __________________________
\n Title:
\n [Address]
\n Attention:
\n Facsimile No.:<\/p>\n
Agreed to:<\/p>\n
[CANADIAN IMPERIAL BANK OF
\n COMMERCE, ATLANTA AGENCY],
\n as Administrative Agent<\/p>\n
By____________________________
\n Title:
\n 200 Galleria Parkway, N.W.
\n Atlanta, Georgia 30339
\n Attention: Credit Administration
\n Facsimile No.: (404) 955-1185<\/p>\n
[LOCK-BOX BANK]<\/p>\n
By____________________________
\n Title:
\n [Address]
\n Attention:
\n Facsimile No.:<\/p>\n
3<\/p>\n
ATTACHMENT A TO
\n EXHIBIT B<\/p>\n
[FORM OF LOCK-BOX NOTICE]<\/p>\n
, 199_<\/p>\n
[Lock-Box Bank]
\n[Address]<\/p>\n
Ladies and Gentlemen:<\/p>\n
We hereby notify you that, as contemplated by the Lock-Box
\nAgreement dated as of ____________, [1990] (the “Lock-Box Agreement”) among you,
\nus and Canadian Imperial Bank of Commerce, Atlanta Agency (the “Administrative
\nAgent”), we have transferred exclusive ownership and control of our lock-box
\naccount number[s] ______________ maintained with you (the “Lock-Box Account[s]”)
\nto the Administrative Agent, 200 Galleria Parkway, N.W., Atlanta, Georgia 30338.<\/p>\n
We hereby irrevocably instruct you to follow any instructions
\ngiven to you by the Administrative Agent with respect to the Lock-Box Account[s]
\nin accordance with the terms of the Lock-Box Agreement.<\/p>\n
This Notice shall be governed by, and construed in accordance
\nwith, the laws of the State of New York.<\/p>\n
Very truly yours,<\/p>\n
[NAME OF SELLER OR ORIGINATOR]<\/p>\n
By:
\n Title:<\/p>\n
EXHIBIT D<\/p>\n
[FORM OF TRANSFER AGREEMENT]<\/p>\n
EXHIBIT E<\/p>\n
[FORM OF ASSIGNMENT AGREEMENT]<\/p>\n
ASSIGNMENT AGREEMENT<\/p>\n
Assignment dated __________, ___, made by the undersigned to
\n______________ pursuant to the Amended and Restated Receivables Purchase
\nAgreement dated as of October 13, 1999 (the “Agreement”; terms defined therein
\nbeing used herein as therein defined) among G-P Receivables, Inc.,
\nGeorgia-Pacific Corporation, Asset Securitization Cooperative Corporation,
\nCorporate Asset Funding Company, Inc., Falcon Asset Securitization Corporation,
\nCanadian Imperial Bank of Commerce, as agent (the “Administrative Agent”).<\/p>\n
In consideration of the payment of $___________, being the
\nexisting [Aggregate] Capital of the Receivable Interest[s], referred to below,
\nand of $________, being the [aggregate] unpaid accrued Yield for such Receivable
\nInterest[s], receipt of which payment is hereby acknowledged, the undersigned
\nhereby assigns to _____________ all of its right, title and interest in and to
\nthe Receivable Interest[s] purchased by the undersigned in [a] Purchase[s] on
\n___________, 19__, [__________, 19__, [etc.]] under the Agreement.]<\/p>\n
The Assignor (i) represents and warrants that it is the legal
\nand beneficial owner of the Receivable Interest[s] being assigned by it
\nhereunder and that such Receivable Interest[s] [is] [are] free and clear of any
\nAdverse Claim created by the Assignor; (ii) makes no representation or warranty
\nand assumes no responsibility with respect to any statements, warranties or
\nrepresentations made in or in connection with the Agreement, or the execution,
\nlegality, validity, enforceability, genuineness, sufficiency or value of the
\nAgreement or any other agreement, instrument or document furnished pursuant
\nthereto; and (iii) makes no representation or warranty and assumes no
\nresponsibility with respect to the financial condition of the Seller or the
\nperformance or observance by the Seller of any of its obligations under the
\nAgreement or any other agreement, instrument or document furnished pursuant
\nthereto.<\/p>\n
The Assignee (i) confirms that it has received a copy of the
\nAgreement, together with copies of the financial statements referred to in
\nSection 4.01 thereof, and such other agreements, documents and information as it
\nhas deemed appropriate to make its own credit analysis and decision to enter
\ninto this Assignment and purchase the Receivable Interest[s]; (ii) agrees that
\nit will, independently and without reliance upon the Administrative Agent, any
\nof its Affiliates or the Assignor and based on such agreements, documents and
\ninformation as it shall deem appropriate at the time, continue to make its own
\ncredit decisions in taking or not taking action under the Agreement; (iii)
\nappoints and authorizes the Administrative Agent to take such action as agent on
\nits behalf and to exercise such powers under the Agreement as are delegated to
\nthe Administrative Agent by the terms thereof, together with such powers as are
\nreasonably incidental thereto; (iv) appoints as its agent the Collection Agent
\nfrom time to time designated pursuant to Section 6.01 to enforce its respective
\nrights and interests in and under the Pool Receivables, the Related Security and
\nthe related Contracts; and<\/p>\n
(v) agrees that it will not institute against any Purchaser any proceeding of
\nthe type referred to in Section 7.01(i) of the Agreement so long as any Notes
\nissued by such Purchaser shall be outstanding or there shall not have elapsed
\none year plus one day since the last day on which any such Notes shall have been
\noutstanding.<\/p>\n
Following the execution of this Assignment by the Assignor and
\nthe Assignee, it will be delivered to the Administrative Agent. The effective
\ndate of this Assignment shall be the date above specified (the “Effective
\nDate”).<\/p>\n
As of the Effective Date, (i) the Assignee shall be and become
\nan owner in the Receivable Interest[s] referred to herein for all purposes of
\nthe Agreement and (ii) the Assignor shall relinquish its rights with respect to
\nthe Receivable Interest[s] for all purposes of the Agreement.<\/p>\n
This Assignment shall be governed by and construed in
\naccordance with the laws of the State of New York.<\/p>\n
IN WITNESS WHEREOF, the undersigned has caused this Assignment
\nto be duly executed and delivered by its duly authorized officer or agent as of
\nthe date first written above.<\/p>\n
[NAME OF ASSIGNOR]<\/p>\n
By ________________________________
\n Title:<\/p>\n
[NAME OF ASSIGNEE]<\/p>\n
By ________________________________
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