PURCHASE ANDCONTRIBUTION AGREEMENT Dated as of May 21, 2009 Between DST SYSTEMS, INC. as the Seller and as the Servicer and FOUNTAIN CITY FINANCE, LLC as the Purchaser
| EXECUTION COPY |
PURCHASE AND CONTRIBUTION AGREEMENT
Dated as of May 21, 2009
Between
DST SYSTEMS, INC.
as the Seller and as the Servicer
and
FOUNTAIN CITY FINANCE, LLC
as the Purchaser
TABLE OF CONTENTS
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| ARTICLE I DEFINITIONS | 1 | |
| SECTION 1.01 | Certain Defined Terms | 1 |
| SECTION 1.02 | Other Terms | 3 |
| ARTICLE II AMOUNTS AND TERMS OF PURCHASES AND CONTRIBUTIONS | 3 | |
| SECTION 2.01 | Facility | 3 |
| SECTION 2.02 | Making Purchases | 3 |
| SECTION 2.03 | Collections | 4 |
| SECTION 2.04 | Settlement Procedures | 4 |
| SECTION 2.05 | Payments and Computations, Etc | 5 |
| SECTION 2.06 | Contributions | 5 |
| ARTICLE III CONDITIONS OF PURCHASES | 5 | |
| SECTION 3.01 | Conditions Precedent to Initial Purchase from the Seller | 5 |
| SECTION 3.02 | Conditions Precedent to All Purchases | 6 |
| ARTICLE IV REPRESENTATIONS AND WARRANTIES | 7 | |
| SECTION 4.01 | Representations and Warranties of the Seller | 7 |
| ARTICLE V COVENANTS | 11 | |
| SECTION 5.01 | Covenants of the Seller | 11 |
| SECTION 5.02 | Grant of Security Interest | 16 |
| SECTION 5.03 | Covenant of the Seller and the Purchaser | 17 |
| ARTICLE VI ADMINISTRATION AND COLLECTION | 17 | |
| SECTION 6.01 | Designation of Servicer | 17 |
| SECTION 6.02 | Duties of Servicer | 18 |
| SECTION 6.03 | [Reserved] | 18 |
| SECTION 6.04 | Certain Rights of the Purchaser | 18 |
| SECTION 6.05 | Rights and Remedies | 19 |
| SECTION 6.06 | Transfer of and Access to Records | 19 |
| ARTICLE VII EVENTS OF TERMINATION | 20 | |
| SECTION 7.01 | Events of Termination | 20 |
| ARTICLE VIII INDEMNIFICATION | 22 | |
| SECTION 8.01 | Indemnities by the Seller | 22 |
| ARTICLE IX MISCELLANEOUS | 24 | |
| SECTION 9.01 | Amendments, Etc | 24 |
| SECTION 9.02 | Notices, Etc | 24 |
| SECTION 9.03 | Binding Effect; Assignability | 24 |
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| SECTION 9.04 | Costs and Expenses | 25 |
| SECTION 9.05 | No Proceedings | 25 |
| SECTION 9.06 | Confidentiality | 25 |
| SECTION 9.07 | GOVERNING LAW | 25 |
| SECTION 9.08 | Third Party Beneficiary | 26 |
| SECTION 9.09 | Execution in Counterparts | 26 |
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EXHIBITS
| EXHIBIT A | Credit and Collection Policy |
| EXHIBIT B | Deposit Accounts and Lock-Boxes |
| EXHIBIT C | Addresses |
| EXHIBIT D | Seller UCC Information |
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PURCHASE AND CONTRIBUTION AGREEMENT
Dated as of May 21, 2009
DST Systems, Inc., a Delaware corporation, as the seller (the “Seller”) and the Servicer, and Fountain City Finance, LLC, a Delaware limited liability company, as the purchaser (the “Purchaser”), agree as follows:
PRELIMINARY STATEMENTS
(1) The Seller wishes to sell all of the Receivables (as defined below) to the Purchaser, and the Purchaser wishes to purchase such Receivables on the terms and conditions set forth in this Purchase and Contribution Agreement (as amended, supplemented, restated or otherwise modified in accordance with the terms hereof and in effect from time to time, this “Agreement”).
(2) The Seller may also wish to contribute Receivables to the capital of the Purchaser from time to time on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms. All capitalized terms used herein shall have the meanings specified herein or, if not so specified, the meaning specified in, or incorporated by reference into, the RPA (as defined below), such meanings to be equally applicable to both the singular and plural forms of the terms defined:
“Agreement” has the meaning specified in the Preamble.
“Discount” means, in respect of each Purchase or contribution hereunder, 1% multiplied by the Aggregate Outstanding Balance of the Receivables that are the subject of such Purchase or contribution; provided, however, the foregoing Discount may be revised prospectively by request of either the Seller or the Purchaser reasonably and in good faith to reflect changes in recent experience with respect to write-offs, timing and costs of Collections and cost of funds, provided, further, that such revision is consented to by the Seller and the Purchaser (it being understood that each party agrees to duly consider such request but shall have no obligation to give such consent).
“Events of Termination” has the meaning specified in Section 7.01.
“Facility Termination Date” means the earliest of (i) the “Facility Termination Date” (as such term is defined in the RPA), (ii) the date determined pursuant to Section 7.01 and (iii) the date which the Seller designates by at least five (5) Business Days’ notice to the Purchaser and its assignees (including the Agent).
“General Trial Balance” of the Seller on any date means the Seller’s accounts receivable trial balance (whether in the form of a computer printout, magnetic tape or diskette) on such date, listing Obligors and the Receivables respectively owed by such Obligors on such date together with the aged Outstanding Balances of such Receivables, in form and substance satisfactory to the Purchaser.
“Indemnified Amounts” has the meaning specified in Section 8.01.
“Indemnified Party” has the meaning specified in Section 8.01.
“Originator Purchase Agreement” means the Originator Purchase Agreement dated as of the date of this Agreement among the Originators (other than the Seller), as sellers and the Seller, as purchaser and servicer, as amended or restated from time to time.
“Purchase” means a purchase by the Purchaser of Receivables from the Seller pursuant to Article II.
“Purchase Date” means each day on which a Purchase and/or contribution is made pursuant to Article II.
“Purchase Price” for any Purchase means an amount equal to the Outstanding Balance of the Receivables that are the subject of such Purchase (in the case of Billed Receivables, as set forth in the Seller’s General Trial Balance), minus the Discount for such Purchase.
“Purchaser” has the meaning specified in the Preamble.
“Receivable” means any indebtedness of any Person to any Originator (without giving effect to any transfer under the Initial Purchase Agreement) and any right of any Originator to payment from or on behalf of such Person whether constituting an account, chattel paper, investment or general intangible, arising in connection with the sale of goods or the rendering of services by the Originators, including the right to payment of any interest, fees or finance charges and other obligations of such Person with respect thereto; provided, that unless expressly stated otherwise, each Closing Date Receivable shall be a “Receivable” for purposes of this Agreement.
“RPA” means that certain Receivables Purchase Agreement, dated as of the date hereof, among the Purchaser, as seller, Enterprise Funding Company, LLC, as an investor, Bank of America, National Association, as a bank and the agent, the Parent, as servicer, and the Originators, as originators, as amended or restated from time to time.
“RPA Final Payment Date” means the later of the “Facility Termination Date” (as such term is defined in the RPA) and the date on which all Capital, Yield (each as defined in the RPA), fees and other obligations under the RPA are paid in full.
“Secured Obligations” has the meaning specified in Section 5.02.
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“Seller” has the meaning specified in the Preamble.
“Seller Collateral” has the meaning specified in Section 5.02.
“Servicer” means at any time the Person then authorized pursuant to Section 6.01 to service, administer and collect Receivables.
“Servicer Report” means a report, in form and substance satisfactory to the Purchaser, furnished by the Servicer to the Purchaser pursuant to Section 6.02(b).
“Settlement Date” means the second Business Day of each calendar month; provided, however, that following the occurrence of an Event of Termination that (i) occurs after the RPA Final Payment Date, Settlement Dates shall occur on such days as are selected from time to time by the Purchaser or its assignees in a written notice to the Servicer and (ii) occurs prior to the RPA Final Payment Date, Settlement Dates shall occur on such days as are selected from time to time by the Agent or its assignees in a written notice to the Servicer.
SECTION 1.02 Other Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9.
ARTICLE II
AMOUNTS AND TERMS OF PURCHASES AND CONTRIBUTIONS
SECTION 2.01 Facility. On the terms and conditions hereinafter set forth and without recourse to the Seller (except to the extent specifically provided herein), the Seller shall sell to and/or contribute to the capital of the Purchaser all of its right, title and interest in, under and to all Receivables originated by it, or acquired by it from time to time pursuant to the Originator Purchase Agreement, and the Purchaser shall Purchase and/or accept as a capital contribution from the Seller all such Receivables from the Seller from time to time, in each case during the period from the date hereof to the Facility Termination Date.
SECTION 2.02 Making Purchases.
(a) Initial Purchase. The Seller shall give the Purchaser at least one Business Day’s notice of its request for the initial Purchase hereunder, which request shall specify the date of such Purchase (which shall be a Business Day) and the proposed Purchase Price for such Purchase. The Purchaser shall promptly notify the Seller whether it has determined to make such Purchase. On the date of such Purchase, the Seller shall sell and/or contribute to the capital of the Purchaser all Receivables originated by the Seller or acquired by the Seller pursuant to the Originator Purchase Agreement, and the Purchaser shall, upon satisfaction of the applicable conditions set forth in Article III, pay the Purchase Price for such Purchase to the Seller in the manner provided in Section 2.02(c) and/or accept such contribution. Effective upon such payment, the Seller hereby sells, conveys, transfers and assigns to the Purchaser all Receivables originated or acquired by it and in existence on the date of the initial Purchase.
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(b) Subsequent Purchases. On each Business Day following the initial Purchase, unless either party shall notify the other party to the contrary, the Seller shall sell to the Purchaser and the Purchaser shall Purchase from the Seller, upon satisfaction of the applicable conditions set forth in Article III, all Receivables originated or acquired by the Seller which have not previously been sold or contributed to the Purchaser; provided, however, that the Seller may, at its option on any Purchase Date, contribute all or any of such Receivables to the Purchaser pursuant to Section 2.06, instead of selling such Receivables to the Purchaser pursuant to this Section 2.02(b). The Purchaser shall, with respect to each Purchase hereunder, pay the Purchase Price for such Purchase in the manner provided in Section 2.02(c). Effective as of each Purchase Date, the Seller hereby sells, conveys, transfers and assigns to the Purchaser all Receivables originated or acquired by it and not previously sold, conveyed, transferred or assigned by it to the Purchaser.
(c) Payment of Purchase Price. The Purchase Price for the initial Purchase shall be paid on the Purchase Date therefor and the Purchase Price for each subsequent Purchase in any calendar month shall be paid on the first Settlement Date (without giving effect to the proviso in the definition thereof) in the calendar month following the Purchase Date therefor, in each case, by a deposit in same day funds to the Seller’s account designated by the Seller. To the extent that on any date set for the payment of Purchase Price, the Purchaser does not have sufficient funds to pay the entire Purchase Price in cash, the amount of the Purchase Price in excess of actual amount paid in cash by the Purchaser shall constitute a contribution to the capital of the Purchaser by the Seller pursuant to Section 2.06, and the parties hereto will make the appropriate accounting entries in their books and records to reflect such allocation as between the Purchase Price cash payment and capital contribution.
(d) Ownership of Receivables and Related Security. On each Purchase Date, after giving effect to the Purchase and/or contribution on such date, the Purchaser shall own all Receivables originated or acquired by the Seller as of such date (including Receivables which have been previously sold or contributed to the Purchaser hereunder). The Purchase or contribution of any Receivable shall include all Related Security and proceeds (as defined in Article 9 of the UCC) with respect to such Receivable.
SECTION 2.03 Collections. The Servicer shall deposit into the Collection Account and apply all Collections of Receivables in accordance with the RPA.
SECTION 2.04 Settlement Procedures. (a) If on any day any Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Receivable in the amount of such Diluted Receivable. If the Seller is not the Servicer, the Seller shall pay to the Servicer on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
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(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Receivable, such party shall give prompt written notice thereof to the Purchaser, the Servicer and the Seller, as soon as practicable and in any event within three (3) Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Servicer or the Purchaser or its assignee or designee, repurchase such Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Receivable. Each repurchase of a Receivable shall include the Related Security with respect to such Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Receivable. If the Seller is not the Servicer, the Seller shall pay to the Servicer on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
SECTION 2.05 Payments and Computations, Etc. (a) All amounts to be paid or deposited by the Seller or the Servicer hereunder shall be paid or deposited no later than 11:00 A.M. (New York City time) on the day when due in immediately available funds to an account or accounts designated by the Purchaser from time to time, which during the existence of the RPA, shall be the Collection Account.
(b) The Seller shall, to the extent permitted by law, pay to the Purchaser interest on any amount not paid or deposited by the Seller (whether as Servicer or otherwise) when due hereunder at an interest rate per annum equal to 2% per annum above the Alternate Base Rate, payable on demand.
(c) All computations of interest and all computations of fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed. Whenever any payment or deposit to be made hereunder shall be due on a day other than a Business Day, such payment or deposit shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of such payment or deposit.
SECTION 2.06 Contributions. In addition to those deemed contributions pursuant to Section 2.02(c), the Seller may from time to time at its option, by notice to the Purchaser on or prior to the date of the proposed contribution, identify Receivables which it proposes to contribute to the Purchaser as a capital contribution. On the date of each contribution made in accordance with this Section 2.06, or made under Section 2.02(c), and after giving effect thereto, the Purchaser shall own the Receivables so identified (as applicable) and all Related Security and proceeds with respect thereto. The foregoing notwithstanding, on the date of the initial Purchase hereunder the Seller agrees to contribute to the Purchaser all Receivables then owned by the Seller which are not included in such initial Purchase.
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01 Conditions Precedent to Initial Purchase from the Seller. The initial Purchase of Receivables from the Seller hereunder is subject to the conditions precedent that the Purchaser shall have received on or before the Closing Date the following, each (unless otherwise indicated) dated such date, in form and substance satisfactory to the Purchaser:
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(a) Certified copies of the resolutions of the Board of Directors of the Seller approving this Agreement and the other applicable Transaction Documents and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other applicable Transaction Documents.
(b) A certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign this Agreement, the other applicable Transaction Documents and the other documents to be delivered by it hereunder.
(c) Acknowledgment copies (or other evidence of filing satisfactory to the Agent) of proper financing statements and financing statement amendments or terminations, as applicable, duly filed on or before the date of the initial Purchase, naming the Seller as the seller/debtor and the Purchaser as the purchaser/secured party, or other similar instruments or documents, as the Purchaser may deem necessary or desirable under the UCC of all appropriate jurisdictions or other applicable law to perfect the Purchaser’s ownership of and security interest in the Receivables, Related Security and Collections and proceeds with respect thereto.
(d) Acknowledgment copies (or other evidence of filing satisfactory to the Agent) of proper financing statements and financing statement amendments or terminations, as applicable, if any, necessary to release or assign all security interests and other rights of any Person in the Receivables, Contracts or Related Security previously granted by the Seller.
(e) Completed requests for information, dated on or before the date of such initial Purchase, listing all effective financing statements filed in the jurisdictions referred to in subsection (c) above and in any other jurisdiction reasonably requested by the Purchaser that name the Seller as debtor, together with copies of such other financing statements (none of which shall cover any Receivables, Contracts or Related Security).
(f) A favorable opinion of (i) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Seller and (ii) Randall D. Young, General Counsel of the Parent, in form and substance satisfactory to the Purchaser, as to such matters as the Purchaser may reasonably request.
(g) Duly executed copies of the Deposit Account Control Agreement and all documentation related thereto.
SECTION 3.02 Conditions Precedent to All Purchases. Each Purchase (including the initial Purchase) and contribution hereunder shall be subject to the further conditions precedent that:
(a) on or prior to the date of such Purchase or contribution, the Seller shall have delivered to the Purchaser, if requested by the Purchaser, the Seller’s General Trial Balance (which if in magnetic tape or diskette format shall be compatible with the Purchaser’s computer equipment) as of a date not more than thirty-one (31) days prior to the date of such Purchase or contribution, and such additional information concerning the Receivables as may reasonably be requested by the Purchaser;
(b) on or prior to the date of such Purchase or contribution, the Servicer shall have delivered to the Purchaser, in form and substance satisfactory to the Purchaser, a completed Servicer Report for the most recently ended reporting period for which information is required pursuant to Section 6.02(b) and containing such additional information as may reasonably be requested by the Purchaser;
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(c) on or prior to the date of such Purchase, the Seller shall have marked its master data processing records with a legend, acceptable to the Purchaser, stating that the Seller’s Receivables, together with the Related Security and Collections with respect thereto, have been sold or transferred in accordance with this Agreement;
(d) on the date of such Purchase or contribution the following statements shall be true (and the Seller, by accepting the Purchase Price for such Purchase, or by making such contribution, shall be deemed to have certified that):
(i) the representations and warranties made by the Seller in Section 4.01 are correct on and as of the date of such Purchase or contribution as though made on and as of such date,
(ii) no event has occurred and is continuing, or would result from such Purchase or contribution, that constitutes an Event of Termination or an Incipient Event of Termination, and
(iii) the Purchaser shall not have delivered to the Seller a notice that the Purchaser shall not make any further Purchases or accept any further contributions hereunder; and
(e) the Purchaser shall have received such other approvals, opinions or documents as the Purchaser may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller (i) is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation as set forth in Exhibit D hereto (as such Exhibit D may be amended from time to time pursuant to Section 5.01(b)), (ii) has all corporate power and, unless the failure to do so would not have a Material Adverse Effect, has all licenses, authorizations, consents and approvals of all Official Bodies required to carry on its business in each jurisdiction in which its business is now and proposed to be conducted and (iii) is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except, with respect to clause (iii), where the failure to so qualify could not reasonably be expected to result in a Material Adverse Effect.
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(b) The execution, delivery and performance by the Seller of this Agreement, any other applicable Transaction Document to which it is a party and the other documents to be delivered by it hereunder, including the Seller’s sale and contribution of Receivables hereunder and the Seller’s use of the proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (1) the Seller’s charter or by-laws, (2) any Law applicable to the Seller, (3) any contractual restriction binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of the Seller’s interest in the Receivables and the Related Security pursuant to this Agreement). This Agreement, any other applicable Transaction Document and the other documents to be delivered by it hereunder have been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of this Agreement or any other document to be delivered by it hereunder, except for the filing of UCC financing statements, amendments thereto and terminations thereof referred to herein.
(d) Each of the Transaction Documents to which it is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar Laws affecting the rights of creditors generally and general equitable principles (whether considered in a proceeding at law or in equity).
(e) Purchases and contributions made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Receivables to the Purchaser, enforceable against creditors of, and purchasers from, the Seller. After giving effect to each Purchase and/or contribution hereunder, the Seller shall have no remaining property interest in any Receivable, transferred or purported to have been transferred in such Purchase and/or contribution.
(f) The balance sheets of the Parent and its Subsidiaries as at the later of (i) December 31, 2008, and (ii) the date of the most recent audited annual financial statements of the Parent delivered pursuant to Section 5.01(k)(ii), in each case, together with the related statements of income and retained earnings of the Parent and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the financial condition of the Parent and its Subsidiaries as at such date and the results of the operations of the Parent and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied, and (ii) since such date there has been no material adverse change in the business, operations, property, prospects or financial or other condition of the Parent; it being understood that a breach of this clause (ii) shall occur if the audited annual financial statements for any year shall show such a material adverse change from the audited annual financial statements for the immediately prior year.
(g) The Seller is not in violation or any order of any Official Body. There is no pending or threatened action, investigation or proceeding affecting the Seller or any of its Subsidiaries before any Official Body which could reasonably be expected to result in a Material Adverse Effect.
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(h) No proceeds of any Purchase will be used (i) to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act, (ii) to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 or (iii) for the purpose, whether immediate, incidental or ultimate, that violates applicable Law including Regulation U or X issued by the Board of Governors of the Federal Reserve System of the United States.
(i) No transaction contemplated hereby requires compliance with any bulk sales act or similar Law.
(j) Each Receivable sold or contributed by the Seller and characterized in any Servicer Report as an Eligible Receivable is, as of the date of such Servicer Report (or, if applicable, as of a date certain specified in such report), an Eligible Receivable. Each Receivable, together with the Related Security, is owned (immediately prior to its sale or contribution hereunder) by the Seller free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Purchaser). When the Purchaser makes a Purchase or accepts a contribution hereunder, it shall acquire valid and perfected first priority ownership of each Receivable and the Related Security and Collections with respect thereto free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Purchaser), and no effective financing statement or other instrument similar in effect covering any Receivable, any interest therein, the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor of Seller in accordance with the Originator Purchase Agreement, in favor of Purchaser in accordance with this Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by the Purchaser.
(k) Each Servicer Report (if prepared by the Seller, or to the extent that information contained therein is supplied by the Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time (whether before or after the date of this Agreement) by the Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Purchaser at such time) as of the date so furnished (or, as applicable, as of a date certain specified in such report), and no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(l) The principal place of business and chief executive office of the Seller and the office where the Seller keeps its records concerning the Receivables are located at the address or addresses referred to in Section 5.01(b). The Seller is located in the jurisdiction of incorporation set forth in Exhibit D hereto for the purposes of Section 9-307 of the UCC as in effect in the State of New York; and the office in the jurisdiction of incorporation of the Seller in which a UCC financing statement is required to be filed in order to perfect the security interest granted by the Seller hereunder is set forth in Exhibit D hereto (in each case as such Exhibit D may be amended from time to time pursuant to Section 5.01(b)). The Seller has not changed its name since January 1, 2005, except as set forth on Exhibit D hereto.
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(m) The names and addresses of all the Deposit Banks, together with the post office boxes and account numbers of the Lock-Boxes and the Deposit Accounts, respectively, at such Deposit Banks are specified in Exhibit B (as the same may be amended from time to time pursuant to Section 5.01(g)). Within thirty (30) days of the Closing Date, each Seller has instructed all related Obligors to make payments related to the Receivables into either a Lock-Box or a Deposit Account specified in Exhibit B (as the same may be amended from time to time pursuant to Section 5.01(g)). The Lock-Boxes and the Deposit Accounts set forth on Exhibit B (as the same may be amended from time to time pursuant to Section 5.01(g)) are the only post office boxes and bank accounts into which Obligors have been instructed to make payments on the Receivables and into which Collections of such Receivables are to be deposited or remitted.
(n) Except as set forth in Exhibit D hereto, the Seller is not known by and does not use any tradename or doing-business-as name.
(o) On any date of each Purchase hereunder by the Purchaser, the Seller is Solvent before and will be Solvent before and will be Solvent after giving effect to such Purchase.
(p) With respect to any programs used by the Seller in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Servicer pursuant to Section 6.01 so that such new Servicer shall have the benefit of such programs (it being understood that, however, the Servicer, if other than the Parent, shall be required to be bound by a confidentiality agreement reasonably acceptable to the Parent (on behalf of itself and each of the Originators)).
(q) The transfers of Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller.
(r) The Seller has (i) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns and (iii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with GAAP).
(s) No event has occurred and is continuing that constitutes an Event of Termination or an Incipient Event of Termination.
(t) Since the Closing Date, there have been no material changes in the Credit and Collection Policy other than in accordance with the RPA. It has at all times complied with the Credit and Collection Policy in all material respects with regard to each Receivable originated or serviced by it.
(u) The Seller has at all times complied with the covenants and obligations set forth in its governing documents and herein.
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(v) The Seller is not, and is not controlled by, an “investment company” within the meaning of the Investment Company Act of 1940, or is exempt from all provisions of such act.
(w) Each of the representations and warranties made by the Seller contained in the Transaction Documents is true, complete and correct in all respects and it hereby makes each such representation and warranty to, and for the benefit of, the Agent, the Investors and the Banks as if the same were set forth in full herein.
ARTICLE V
COVENANTS
SECTION 5.01 Covenants of the Seller. The Seller covenants from the date hereof until the first day following the Facility Termination Date on which all of the Receivables are either collected in full or become Defaulted Receivables:
(a) Compliance with Laws, Etc. The Seller will comply in all material respects with all applicable Laws and preserve and maintain its corporate existence, rights, franchises, qualifications and privileges except to the extent that the failure so to comply with such Laws or the failure so to preserve and maintain such rights, franchises, qualifications, and privileges would not impair the collectibility of the Receivables or the ability of the Seller to perform its obligations under this Agreement.
(b) Offices, Records, Name and Organization. The Seller will keep its principal place of business and chief executive office and the office where it keeps its records concerning the Receivables at the address of the Seller set forth on Exhibit C hereto or, upon thirty (30) days’ prior written notice to the Purchaser and it assignees, at any other locations within the United States. The Seller will not change its name or its state of organization unless (i) the Seller shall have provided the Purchaser and its assignees with at least thirty (30) days’ prior written notice thereof, together with an updated Exhibit D and (ii) no later than the effective date of such change, all actions required by Section 5.01(j) shall have been taken and completed. Upon confirmation by the Purchaser’s assignee (prior to the RPA Final Payment Date) or the Purchaser (following the RPA Final Payment Date) of receipt of any such notice (together with an updated Exhibit D) and the completion, as aforesaid, of all actions required by Section 5.01(j) and Exhibit D, as applicable, to this Agreement shall, without further action by any party, be deemed to be amended and replaced by the updated Exhibit D accompanying such notice. The Seller also will maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Receivables and related Contracts in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including, without limitation, records adequate to permit the daily identification of each new Receivable and all Collections of and adjustments to each existing Receivable). The Seller shall make a notation in its books and records, including its computer files, to indicate which Receivables have been sold or contributed by it to the Purchaser hereunder.
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(c) Performance and Compliance with Contracts and Credit and Collection Policy. The Seller will, at its expense, timely and fully perform and comply with all material provisions, covenants and other promises required to be observed by it under the Contracts related to the Receivables, and timely and fully comply in all material respects with the Credit and Collection Policy in regard to each Receivable and the related Contract.
(d) Sales, Liens, Etc. Except for the sales and contributions of Receivables contemplated herein, the Seller will not sell, convey, transfer, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim upon or with respect to, any Receivable, Related Security, related Contract or Collections, any other Seller Collateral, or upon or with respect to any account to which any Collections of any Receivable are sent, or assign any right to receive income in respect thereof.
(e) Extension or Amendment of Receivables. Except as provided in RPA, the Seller will not extend, amend or otherwise modify the terms of any Receivable, or amend, modify or waive any term or condition of any Contract related thereto.
(f) Change in Business or Credit and Collection Policy. The Seller will not make any change in the character of its business or in the Credit and Collection Policy that would, in either case, impair the collectibility of the Receivables or the ability of the Seller to perform its obligations under this Agreement.
(g) Change in Payment Instructions to Obligors. The Seller will not add or terminate any post office box, bank, or bank account as a Lock-Box, Deposit Bank or Deposit Account from those listed in Exhibit B hereto, or make any change in its instructions to Obligors regarding payments to be made to any Lock-Box or Deposit Account, unless the Agent (prior to the RPA Final Payment Date) or the Purchaser (following the RPA Final Payment Date) shall have received prior notice of such addition, termination or change (including an updated Exhibit B) and a fully executed Deposit Account Control Agreement with each new Deposit Bank or with respect to each new Lock-Box or Deposit Account. Upon confirmation by the Purchaser’s assignee (prior to the RPA Final Payment Date) or the Purchaser (following the RPA Final Payment Date) of receipt of any such notice and the related documents, Exhibit B hereto shall, without further action by any party, be deemed to be amended and replaced by the updated Exhibit B accompanying such notice.
(h) Deposits to Lock-Boxes and Deposit Accounts. The Seller will instruct all of the Obligors to remit all their payments in respect of Receivables to Lock-Boxes or Deposit Accounts. If the Seller shall receive any Collections directly, it shall immediately (and in any event within two (2) Business Days) deposit the same to a Lock-Box or a Deposit Account. The Seller will not deposit or otherwise credit, or cause or permit to be so deposited or credited, to any Deposit Account cash or cash proceeds other than Collections of Receivables. Each Deposit Account shall at all times be subject to a Deposit Account Control Agreement.
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(i) Audits. The Seller will, from time to time during regular business hours as requested by the Purchaser or its assigns, permit the Purchaser, or its agents, representatives or assigns, (i) to examine and make copies of and abstracts from all books, records and documents (including, without limitation, computer tapes and disks) in the possession or under the control of the Seller relating to Receivables and the Related Security, including, without limitation, the related Contracts, and (ii) to visit the offices and properties of the Seller for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to Receivables and the Related Security or the Seller’s performance hereunder or under the Contracts with any of the officers or employees of the Seller having knowledge of such matters.
(j) Further Assurances. (i) The Seller agrees from time to time, at its expense, promptly to execute and deliver all further instruments and documents, and to take all further actions, that may be necessary or desirable, or that the Purchaser or its assignees may reasonably request, to perfect, protect or more fully evidence the sale and contribution of Receivables under this Agreement, or to enable the Purchaser or its assignees to exercise and enforce its respective rights and remedies under this Agreement. Without limiting the foregoing, the Seller will, upon the request of the Purchaser or its assignees, (A) execute and file such financing or continuation statements, or amendments thereto and assignments thereof, and such other instruments and documents, that may be necessary or desirable to perfect, protect or evidence such Receivables and any security interest in other assets of the Seller granted hereunder; and (B) deliver to the Purchaser copies of all Contracts relating to the Receivables and all records relating to such Contracts and the Receivables, whether in hard copy or in magnetic tape or diskette format (which if in magnetic tape or diskette format shall be compatible with the Purchaser’s (or its assignees’) computer equipment).
(ii) The Seller authorizes the Purchaser or its assignees to file financing or continuation statements, and amendments thereto and assignments thereof, relating to the Receivables and the Related Security, the related Contracts and the Collections with respect thereto, any other Seller Collateral and any other assets of the Seller in which a security interest is granted hereunder.
(iii) The Seller shall perform its obligations under the Contracts related to the Receivables to the same extent as if the Receivables had not been sold or transferred.
(k) Reporting Requirements. The Seller maintains a system of accounting established and administered in accordance with GAAP and will provide to the Purchaser (in multiple copies, if requested by the Purchaser) the following:
(i) as soon as available, but in any event within the earlier of (i) the 60th day after the end of each of the first three fiscal quarters of each fiscal year of the Parent and (ii) the day that is five (5) Business Days after the date the Parent’s quarterly report on Form 10-Q is required to be filed with the SEC (including any extensions of such date granted by the SEC or automatically effective upon the filing of a notice with the SEC), a balance sheet of the Parent and its Subsidiaries as of the end of such quarter and a statement of income and retained earnings of the Parent and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter prepared in accordance with GAAP, certified by a Compliance Certificate signed by the chief financial officer of the Parent;
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(ii) as soon as available, but in any event within the earlier of (i) the 105th day after the end of each fiscal year of the Parent and (ii) the day that is five (5) Business Days after the date the Parent’s annual report on Form 10-K is required to be filed with the SEC (including any extensions of such date granted by the SEC or automatically effective upon the filing of a notice with the SEC), a copy of the annual report for such year for the Parent and its Subsidiaries, containing consolidated financial statements for such year audited by PriceWaterhouseCoopers or other independent public accountants acceptable to the Agent prepared in accordance with GAAP, all certified by a Compliance Certificate signed by the chief financial officer of the Parent;
(iii) as soon as available and in any event concurrently with the delivery of the financial information required pursuant to clause (i) above and clause (ii) above, a balance sheet of the Seller as of the end of such quarter or year and a statement of income and retained earnings of the Seller for the period commencing at the end of the previous fiscal year and ending with the end of such quarter or year, certified by a Compliance Certificate signed by the chief financial officer of the Seller;
(iv) as soon as possible and in any event within five (5) days after the occurrence of each Event of Termination or Incipient Event of Termination, a statement of the chief financial officer of the Seller setting forth details of such Event of Termination or Incipient Event of Termination and the action that the Seller has taken and proposes to take with respect thereto;
(v) promptly after the sending or filing thereof, copies of all reports that the Parent sends to any of its security holders, and copies of all reports and registration statements that the Parent or any of its Subsidiaries files with the SEC or any national securities exchange;
(vi) promptly after the filing or receiving thereof, copies of all reports and notices that the Seller or any Affiliate files under ERISA with the Internal Revenue Service or the PBGC or the U.S. Department of Labor or that the Seller or any Affiliate receives from any of the foregoing or from any multiemployer plan (within the meaning of Section 4001(a)(3) of ERISA) to which the Seller or any Affiliate is or was, within the preceding five years, a contributing employer, in each case in respect of the assessment of withdrawal liability or an event or condition which could, in the aggregate, result in the imposition of liability on the Seller and/or any such Affiliate in excess of $20,000,000;
(vii) at least thirty (30) days prior to any change in the name or jurisdiction any Originator’s or the Seller’s, a notice setting forth the new name or jurisdiction of organization and the effective date thereof;
(viii) promptly after the Seller obtains knowledge thereof, notice of any “Event of Termination” or “Facility Termination Date” under the Initial Purchase Agreement or this Agreement;
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(ix) so long as any Capital shall be outstanding, as soon as possible and in any event no later than the day of occurrence thereof, notice that (A) any Originator (other than the Parent) has stopped selling to the Parent, pursuant to the Initial Purchase Agreement, all newly arising Receivables, or (B) the Parent has stopped selling or contributing to the Seller, pursuant to the Secondary Purchase Agreement, all newly arising Receivables generated or acquired by the Parent;
(x) promptly after receipt thereof, copies of all notices received by the Seller from the Parent under the Secondary Purchase Agreement and all notices received by the Parent from the Originators under the Initial Purchase Agreement;
(xi) within ten (10) Business Days after the date any material change in or amendment to the Credit and Collection Policy is made, a copy of the Credit and Collection Policy then in effect indicating such change or amendment. Within five (5) days after the earlier of the date on which the Seller knows or the date on which the Seller receives notice of any change in the Servicer’s, the Seller’s or any Originator’s public or private debt ratings by any Rating Agency, if any, a written certification of the Servicer’s, the Seller’s or such Originator’s public or private debt ratings after giving effect to any such change;
(xii) within five (5) Business Days of any change in the independent public accountants or any material change (other than as a result of the application of a change in standards by the Financial Accounting Standards Board or the American Institute of Certified Public Accountants or GAAP) in accounting policy of the Seller, the Parent or the Originators, written notice of such change providing reasonable detail regarding any replacement independent public accountants or such material change in accounting policy
(xiii) such other information respecting the Receivables or the condition or operations, financial or otherwise, of the Seller as the Agent may from time to time reasonably request.
Reports and financial statements required to be delivered pursuant to clauses (i), (ii) and (v) of this Section 5.01(k) shall be deemed to have been delivered on the date on which the Parent posts such reports, or reports containing such financial statements, on the Parent’s website on the Internet at www.dstsystems.com or when such reports, or reports containing such financial statements, are posted on the SEC’s website at www.sec.gov; provided that the Seller shall deliver paper copies of the reports and financial statements referred to in clauses (i), (ii) and (v) of this Section 5.01(k) to the Agent or any Investor or Bank who requests the Seller to deliver such paper copies until written notice to cease delivering paper copies is given by the Agent or such Investor or Bank, as applicable.
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(l) Separate Conduct of Business. The Seller will: (i) maintain separate corporate records and books of account from those of the Purchaser; (ii) conduct its business from an office separate from that of the Purchaser (but which may be located in the same facility as the Purchaser); (iii) ensure that all oral and written communications, including without limitation, letters, invoices, purchase orders, contracts, statements and applications, will be made solely in its own name; (iv) have stationery and other business forms and a mailing address and a telephone number separate from those of the Purchaser; (v) not hold itself out as having agreed to pay, or as being liable for, the obligations of the Purchaser; (vi) not engage in any transaction with the Purchaser except as contemplated by this Agreement or as permitted by the RPA; (vii) continuously maintain as official records the resolutions, agreements and other instruments underlying the transactions contemplated by this Agreement; (viii) disclose on its annual financial statements (A) the effects of the transactions contemplated by this Agreement in accordance with GAAP and (B) that the assets of the Purchaser are not available to pay its creditors; and (ix) in its capacity as shareholder of the Purchaser, not adopt any special resolution for the voluntary winding up of the Purchaser without the prior written consent of the Agent under the RPA.
(m) Originator Purchase Agreement. The Seller will not amend, waive or modify any provision of the Originator Purchase Agreement or waive the occurrence of any “Event of Termination” under the Originator Purchase Agreement, without in each case the prior written consent of the Purchaser and its assignees; provided, however, that the Seller may amend the percentage set forth in the definition of “Discount” in the Originator Purchase Agreement in accordance with the provisions of the Originator Purchase Agreement without the consent of the Purchaser and its assignees, provided, further, that the Seller shall promptly notify the Purchaser and its assignees of any such amendment. The Seller will perform all of its obligations under the Originator Purchase Agreement in all material respects and will enforce the Originator Purchase Agreement in accordance with its terms in all material respects.
SECTION 5.02 Grant of Security Interest. The Seller and the Purchaser intend that the transfer of each Receivable hereunder from the Seller to the Purchaser be treated as a transfer of all of the Seller’s right, title and interest in, to and under such Receivable and that, immediately after giving effect to the transfer, the Seller has no further interest (legal or equitable) in any Receivable. The Seller and the Purchaser shall record each transfer as a sale or purchase or a contribution to capital, as the case may be, on its books and records, and reflect each transfer in its financial statements and tax returns as a sale or purchase or a contribution to capital, as the case may be. In the event that, contrary to the mutual intent of the Seller and the Purchaser, any transfer of Receivables hereunder is not characterized as a sale or contribution but rather as a collateral transfer for security (or the transactions contemplated hereby are characterized as a financing transaction), such transfer shall be deemed to be a secured financing, secured by a security interest in all of the Seller’s right, title and interest now or hereafter existing and hereafter arising in, to and under: (A) the Initial Purchase Agreement, including, without limitation, (i) all rights of the purchaser thereunder (which rights have been pledged or assigned to the Seller pursuant to the Initial Purchase Agreement) to receive moneys due or to become due under or pursuant to the Initial Purchase Agreement, (ii) all security interests and property subject thereto from time to time purporting to secure payment of monies due or to become due under or pursuant to the Initial Purchase Agreement (which interests of purchaser thereunder have been pledged or assigned to the Seller pursuant to the Initial Purchase Agreement), (iii) all rights of the purchaser thereunder to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to the Initial Purchase Agreement (which rights of the purchaser thereunder have been pledged or assigned to the Seller pursuant to the Initial Purchase Agreement), (iv) claims of the purchaser thereunder for damages arising out of or for breach of or default under the Initial Purchase Agreement (which claims and rights of the purchaser thereunder have been pledged or assigned to the Seller pursuant to the Initial Purchase Agreement), and (v) the right of the Seller to compel performance and otherwise exercise all remedies thereunder (which rights of the purchaser thereunder have been pledged or assigned to the Seller pursuant to the Initial Purchase Agreement); and (B) all Receivables, whether now owned and existing and hereafter acquired or arising, the Related Security with respect thereto and all Collections and all other assets, including, without limitation, accounts, chattel paper, instruments and general intangibles (as those terms are defined in the UCC), including undivided interests in any of the foregoing and all proceeds of the foregoing (collectively, the “Seller Collateral”). In furtherance of the foregoing, the Seller hereby grants to the Purchaser a security interest in all of the Seller’s right, title and interest now or hereafter existing in, to and under the Seller Collateral to secure the repayment of all amounts due and owing by the Seller to the Purchaser hereunder with accrued interest thereon, if applicable, whether now or hereafter existing, due or to become due, direct or indirect, or absolute or contingent (such amounts the “Secured Obligations”).
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SECTION 5.03 Covenant of the Seller and the Purchaser. Each of the Seller and the Purchaser shall comply with (and cause to be true and correct) (a) each of the facts and assumptions contained in the section captioned “Assumptions of Fact” of the non-substantive consolidation opinion of Skadden, Arps, Slate, Meagher & Flom LLP, and (b) each of the facts and assumptions in the section captioned “Facts and Assumptions” of the DST Systems, Inc. Transaction - True Sale opinion of Skadden, Arps, Slate, Meagher & Flom LLP, each delivered pursuant to Section 3.01(f)(i) .
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01 Designation of Servicer. The servicing, administration and collection of the Receivables shall be conducted by such Person (the “Servicer”) so designated hereunder from time to time. Until the RPA Final Payment Date, the Seller (or such other Person as may be designated from time to time under the RPA) is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. Following the RPA Final Payment Date, the Purchaser or its assignees, by notice to the Seller, may designate as Servicer any Person (including itself) to succeed the Seller or any successor Servicer, if such Person shall consent and agree to the terms hereof. Upon the Seller’s receipt of such notice, the Seller or any successor Servicer agrees that it will terminate its activities as Servicer hereunder in a manner which the Purchaser (or its designees or assignees) believes will facilitate the transition of the performance of such activities to the new Servicer, and the Seller shall use its best efforts to assist the Purchaser (or its designees or assignees) to take over the servicing, administration and collection of the Receivables including, without limitation, providing access to and copies of all computer tapes or disks and other documents or instruments that evidence or relate to Receivables maintained in its capacity as Servicer and access to all employees and officers of the Seller responsible with respect thereto. Each Servicer may (and with respect to any successor Servicer, with the prior consent of the Purchaser or its assignees) subcontract with any other Person for the servicing, administration or collection of Receivables. Any such subcontract shall not affect the Servicer’s liability for performance of its duties and obligations pursuant to the terms hereof, and any such subcontract shall terminate upon designation of a successor Servicer.
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SECTION 6.02 Duties of Servicer. (a) The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to collect each Receivable from time to time, all in accordance with applicable Laws, with reasonable care and diligence, and in accordance with the Credit and Collection Policy. The Purchaser hereby appoints the Servicer, from time to time designated pursuant to Section 6.01, as agent to enforce its ownership and other rights in the Receivables, the Related Security and the Collections with respect thereto.
(b) The Seller shall deliver to the Servicer, and the Servicer shall hold in trust for the Agent and the Purchaser in accordance with their respective interests, all documents, instruments and records (including, without limitation, computer tapes or disks) which evidence or relate to the Receivables; provided that the Servicer agrees to grant the Seller access to such records in accordance with Section 6.06(c).
SECTION 6.03 [Reserved].
SECTION 6.04 Certain Rights of the Purchaser. (a) The Purchaser may at any time give notice of ownership and may, during the existence of an Event of Termination or Incipient Event of Termination occurring after the RPA Final Payment Date, direct the Obligors of Receivables and any Person obligated on any Related Security, or any of them, that payment of all amounts payable under any Receivable shall be made directly to the Purchaser or its designee.
(b) The Seller shall, at any time during the existence of an Event of Termination or Incipient Event of Termination occurring after the RPA Final Payment Date (upon the Purchaser’s request and at the Seller’s expense), give notice of the Purchaser’s ownership to each Obligor of Receivables and direct that payments of all amounts payable under the Receivables be made directly to the Purchaser or its designees or assignees.
(c) At the Purchaser’s request and at the Seller’s expense, the Seller and the Servicer shall (i) assemble all of the documents, instruments and other records (including, without limitation, computer tapes and disks) that evidence or relate to the Receivables, and the related Contracts and Related Security, or that are otherwise necessary or desirable to collect the Receivables, and shall make the same available, or request that the Servicer make the same available, to the Purchaser at a place selected by the Purchaser or its designee, and (ii) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Receivables in a manner acceptable to the Purchaser and, promptly upon receipt, remit all such cash, checks and instruments, duly indorsed or with duly executed instruments of transfer, to the Purchaser or its designee or assignee. The Purchaser shall also have the right to make copies of all such documents, instruments and other records at any time.
(d) The Seller authorizes the Purchaser to take any and all steps in the Seller’s name and on behalf of the Seller that are necessary or desirable, in the determination of the Purchaser, to collect amounts due under the Receivables, including, without limitation (and, prior to the occurrence of the RPA Final Payment Date, only as permitted under the RPA), endorsing the Seller’s name on checks and other instruments representing Collections of Receivables and enforcing the Receivables and the Related Security and related Contracts.
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SECTION 6.05 Rights and Remedies. (a) If the Seller or the Servicer fails to perform any of its obligations under this Agreement, the Purchaser or its assignees may (but shall not be required to) (after notice to the Seller or Servicer and such failure to perform, if capable of being cured, is not cured within ten (10) days after such notice is sent) itself perform, or cause performance of, such obligation, and, if the Seller (as Servicer or otherwise) fails to so perform, the costs and expenses of the Purchaser incurred in connection therewith shall be payable by the Seller as provided in Section 8.01 or Section 9.04 as applicable.
(b) The Seller shall perform all of its obligations under the Contracts related to the Receivables to the same extent as if the Seller had not sold or contributed the Receivables hereunder and the exercise by the Purchaser of its rights hereunder shall not relieve the Seller from such obligations or its obligations with respect to the Receivables. The Purchaser shall not have any obligation or liability under any Receivables or related Contracts, nor shall the Purchaser be obligated to perform any of the obligations of the Seller thereunder.
(c) The Seller shall cooperate with the Servicer in collecting amounts due from Obligors in respect of the Receivables.
(d) The Seller hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Seller all steps necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind held or transmitted by the Seller or transmitted or received by Purchaser (whether or not from the Seller) in connection with any Receivable.
SECTION 6.06 Transfer of and Access to Records. Each Purchase and contribution of Receivables hereunder shall include the transfer to the Purchaser of all of the Seller’s right and title to and interest in the records relating to such Receivables and, subject to the rights of any licensors, shall include an irrevocable non-exclusive license to the use of the Seller’s computer software system to access and create such records. Such license shall be without royalty or payment of any kind, is coupled with an interest, and shall be irrevocable until all of the Receivables are either collected in full or become Defaulted Receivables.
The Seller shall take such action requested by the Purchaser, from time to time hereafter, that may be necessary or appropriate to ensure that the Purchaser has an enforceable ownership interest in the records relating to the Receivables and rights (whether by ownership, license or sublicense) to the use of the Seller’s computer software system to access and create such records, subject to the rights of any licensors.
In recognition of the Seller’s need to have access to the records transferred to the Purchaser hereunder, the Purchaser and the Servicer (as the Purchaser’s agent) hereby grants to the Seller an irrevocable license to access such records in connection with any activity arising in the ordinary course of the Seller’s business or (if the Seller is the Servicer) in the performance of its duties as Servicer, provided that (i) the Seller shall not disrupt or otherwise interfere with the Purchaser’s use of and access to such records during such license period and (ii) the Seller consents to the assignment and delivery of the records (including any information contained therein relating to the Seller or its operations) to any assignees or transferees of the Purchaser provided they agree to hold such records confidential.
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ARTICLE VII
EVENTS OF TERMINATION
SECTION 7.01 Events of Termination. If any of the following events (“Events of Termination”) shall occur and be continuing:
(a) Any Servicer Default; or
(b) The Seller shall fail to make any payment required under Sections 2.04(a) or 2.04(b); or
(c) Any representation or warranty (unless such representation or warranty relates solely to one or more specific Receivables incorrectly characterized as Eligible Receivables and the Seller shall have made any required deemed Collection payment pursuant to Section 2.04 with respect to such Receivables) made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement or any information or report delivered by the Seller pursuant to this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; provided that if a breach of any representation and warranty set forth in Section 4.01(a), the first sentence of Section 4.01(l) or Section 4.01(r) shall occur, no Event of Termination shall occur hereunder if such breach of representation and warranty shall be cured (without any adverse impact on the Purchaser or the Servicer or the collectibility of the Receivables) within five (5) Business Days or; or
(d) The Seller shall fail to perform or observe (i) any term, covenant or agreement contained in this Agreement (other than as referred to in Section 7.01(b) or clause (ii) of this Section 7.01(d)) on its part to be performed or observed and any such failure shall remain unremedied for ten (10) days after written notice thereof shall have been given to the Seller by the Purchaser or its assignees, or (ii) any covenant applicable to it contained in Sections 5.01(b), 5.01(d), 5.01(g), 5.01(h) or 5.01(m); or
(e) The Seller or the Servicer shall fail to pay any principal of or premium or interest on any of its Debt which is outstanding in a principal amount of at least $20,000,000 in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable notice, cure or grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable notice, cure or grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof (other than with respect to “Convertible Senior Debentures” as defined in the Credit Agreement); or
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(f) This Agreement shall for any reason (other than pursuant to the terms hereof) cease to create, or any Purchase of Receivables hereunder shall for any reason cease to be, a valid and perfected first priority ownership interest in each applicable Receivable and the Related Security and Collections with respect thereto, free and clear of any Adverse Claim; or
(g) The Seller or the Servicer shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller or the Servicer seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller or the Servicer shall take any corporate action to authorize any of the actions set forth above in this subsection (g); or
(h) An Event of Termination shall have occurred under the RPA or under the Originator Purchase Agreement, or the RPA, the Originator Purchase Agreement or any other Transaction Document shall cease to be in full force and effect (or the Seller shall state in writing that this Agreement or any other Transaction Document shall cease to be in full force and effect or any provision thereof shall cease to be the valid and binding obligation of the Seller); or
(i) There shall have occurred any event which would be reasonably likely to materially adversely affect the collectibility of the Receivables or the ability of the Seller or the Servicer to collect Receivables or otherwise perform its respective obligations under this Agreement;
then, and in any such event, the Purchaser or its assignees may, by notice to the Seller, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and all Purchases and contributions hereunder shall cease immediately and (y) without limiting any right under this Agreement to replace the Servicer (but subject, prior to the RPA Final Payment Date, to the designation made under the RPA), designate another Person to succeed the Seller (or any successor Servicer) as Servicer; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Receivables provided after default under the UCC and under other applicable Law, which rights and remedies shall be cumulative.
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.01 Indemnities by the Seller. Without limiting any other rights which the Purchaser may have hereunder or under applicable Law, the Seller hereby agrees to indemnify the Purchaser and its assigns and transferees (each, an “Indemnified Party”) from and against any and all damages, claims, losses, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”), awarded against or incurred by any Indemnified Party arising out of or as a result of this Agreement or the other Transaction Documents or the Purchase or contribution of any Receivables or in respect of any such Receivable or any related Contract, including, without limitation, arising out of or as a result of:
(a) the characterization in any Servicer Report or other statement made by the Seller of any Receivable as an Eligible Receivable or as included in the Net Receivables Pool Balance which is not an Eligible Receivable or should not be included in the Net Receivables Pool Balance as of the date of such Servicer Report;
(b) any representation or warranty or statement made or deemed made by the Seller (or any of its officers), the Parent (including, the Parent or any of its Affiliates in the capacity as the Servicer) or any Originator (or any of their respective officers) under or in connection with this Agreement or any of the other Transaction Documents, which shall have been incorrect in any material respect when made;
(c) the failure by the Seller, the Parent (including, the Parent or any of its Affiliates in the capacity as the Servicer) or any Originator to comply with any applicable Law with respect to any Receivable or the related Contract; or the failure of any Receivable or the related Contract to conform to any such applicable Law; or the sale of any Receivable under this Agreement in violation of any applicable Law;
(d) the failure to vest in the Purchaser absolute ownership of the Receivables that are, or that purport to be, the subject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim;
(e) the failure of the Seller to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable Laws with respect to any Receivables that are, or that purport to be, the subject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any Purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable that is, or that purports to be, the subject of a Purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller acting as Servicer);
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(g) any failure of the Seller, as Servicer or otherwise, to perform its duties or obligations in accordance with the provisions hereof and of the other Transaction Documents or to perform its duties or obligations (if any) under any Contract related to a Receivable;
(h) any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract related to a Receivable;
(i) the commingling of Collections of Receivables by the Seller or a designee of the Seller, as Servicer or otherwise, at any time with other funds of the Seller or an Affiliate of the Seller;
(j) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases by the Seller or the ownership by the Seller of Receivables, the Related Security, or Collections with respect thereto or in respect of any Receivable, Related Security or Contract (including, without limitation, in connection with the preparation of a defense or appearing as a third party witness in connection therewith and regardless of whether such investigation, litigation or proceeding is brought by the Seller, an Indemnified Party or any other Person or an Indemnified Party is otherwise a party thereto);
(k) any failure of the Seller to comply with its covenants contained in this Agreement or any other Transaction Document;
(l) any claim brought by any Person other than an Indemnified Party arising from any activity by the Seller or any designee of the Seller in servicing, administering or collecting any Receivable;
(m) any Receivable originated or acquired by the Seller becoming (in whole or in part) a Diluted Receivable;
(n) any failure of such Seller to pay when due any sales, excise or personal property taxes payable in connection with any of the Receivables;
(o) any action taken by such Seller or any of its Affiliates in the enforcement or collection of any Receivable; or
(p) the use of the proceeds of any Purchase by the Seller.
It is expressly agreed and understood by the parties hereto (i) that the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Receivables and (ii) that nothing in this Section 8.01 shall require the Seller to indemnify any Person (A) for Receivables which are not collected, not paid or uncollectible on account of the insolvency, bankruptcy, or financial inability to pay of the applicable Obligor, (B) for damages, losses, claims or liabilities or related costs or expenses to the extent found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from such Person’s gross negligence or willful misconduct, or (C) for any income taxes or franchise taxes incurred by such Person arising out of or as a result of this Agreement or any other Transaction Document or in respect of any Receivable or any Contract.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or consent to any departure by the Seller therefrom shall be effective unless in a writing signed by the Purchaser and, in the case of any amendment, also signed by the Seller and the Servicer, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No failure on the part of the Purchaser to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. Notwithstanding any other provision of this Section 9.01, Exhibits B and D hereto may be amended in accordance with the procedures set forth in Sections 5.01(g) and 5.01(b), respectively.
SECTION 9.02 Notices, Etc. All notices and other communications hereunder shall, unless otherwise stated herein, be in writing (which shall include facsimile communication) and be faxed or delivered, to each party hereto, at its address set forth on Exhibit C hereto or at such other address as shall be designated by such party in a written notice to the other parties hereto. Notices and communications by facsimile shall be effective when sent (and shall be followed by hard copy sent by regular mail), and notices and communications sent by other means shall be effective when received.
SECTION 9.03 Binding Effect; Assignability. (a) This Agreement shall be binding upon and inure to the benefit of the Seller, the Purchaser and their respective successors and assigns; provided, however, that the Seller may not, except pursuant to the RPA, to the Agent for the benefit of the Investors and the Banks assign its rights or obligations hereunder or any interest herein without the prior written consent of the Purchaser. In connection with any sale or assignment by the Purchaser of all or a portion of the Receivables, the buyer or assignee, as the case may be, shall, to the extent of its purchase or assignment, have all rights of the Purchaser under this Agreement (as if such buyer or assignee, as the case may be, were the Purchaser hereunder) except to the extent specifically provided in the agreement between the Purchaser and such buyer or assignee, as the case may be.
(b) This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until such time, after the Facility Termination Date, when all of the Receivables are either collected in full or become Defaulted Receivables; provided, however, that rights and remedies with respect to any breach of any representation and warranty made by the Seller pursuant to Article IV and the provisions of Article VIII and Sections 9.04, 9.05 and 9.06 shall be continuing and shall survive any termination of this Agreement.
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SECTION 9.04 Costs and Expenses. (a) In addition to the rights of indemnification granted to the Purchaser pursuant to Article VIII hereof, the Seller agrees to pay on demand all costs and expenses in connection with the preparation, execution, delivery and administration of this Agreement and the other documents and agreements to be delivered hereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Purchaser with respect thereto and with respect to advising the Purchaser as to its rights and remedies under this Agreement, and the Seller agrees to pay all costs and expenses, if any (including reasonable counsel fees and expenses), in connection with the enforcement of this Agreement and the other documents to be delivered hereunder excluding, however, any costs of enforcement or collection of Receivables which are not paid on account of the insolvency, bankruptcy or financial inability to pay of the applicable Obligor.
(b) In addition, the Seller agrees to pay any and all stamp and other taxes and fees payable in connection with the execution, delivery, filing and recording of this Agreement or the other documents or agreements to be delivered hereunder, and the Seller agrees to save each Indemnified Party harmless from and against any liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and fees.
SECTION 9.05 No Proceedings. The Seller hereby agrees that it will not institute against, or join any other Person in instituting against, the Purchaser any proceeding of the type referred to in Section 7.01(g) so long as there shall not have elapsed one year plus one day since the later of (i) the Facility Termination Date and (ii) the date on which all of the Receivables are either collected in full or become Defaulted Receivables.
SECTION 9.06 Confidentiality. Unless otherwise required by applicable Law, each party hereto agrees to maintain the confidentiality of this Agreement in communications with third parties and otherwise; provided that this Agreement may be disclosed to (i) third parties to the extent such disclosure is made pursuant to a written agreement of confidentiality in form and substance reasonably satisfactory to the other party hereto, and (ii) such party’s legal counsel and auditors and the Purchaser’s assignees, if they agree in each case to hold it confidential.
SECTION 9.07 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE SELLER, THE PURCHASER, AND SERVICER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH OF THE SELLER, THE PURCHASER AND THE SERVICER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN THIS SECTION 9.07 SHALL AFFECT THE RIGHT OF THE INVESTORS TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OF THE SELLER, THE PURCHASER OR THE SERVICER OR ANY OF THEIR RESPECTIVE PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.
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SECTION 9.08 Third Party Beneficiary. Each of the parties hereto hereby acknowledges that the Purchaser may assign all or any portion of its rights under this Agreement and that such assignees may (except as otherwise agreed to by such assignees) further assign their rights under this Agreement, and the Seller hereby consents to any such assignments. All such assignees, including parties to the RPA in the case of assignment to such parties, are intended by the parties hereto to be and shall be third party beneficiaries of, and shall be entitled to enforce the Purchaser’s rights and remedies under, this Agreement to the same extent as if they were parties thereto, except to the extent specifically limited under the terms of their assignment.
SECTION 9.09 Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery by a party hereto of an executed counterpart of this Agreement by facsimile or similar electronic means shall be deemed effective as delivery of the original executed counterpart by such party for purposes of execution hereof.
[Remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| SELLER: | DST SYSTEMS, INC. | ||
| By: | /s/ Gregg Wm. Givens | ||
| Name: | Gregg Wm. Givens | ||
| Title: | Vice President & Chief Accounting Officer | ||
| PURCHASER: | FOUNTAIN CITY FINANCE, LLC | ||
| By: | /s/ Gregg Wm. Givens | ||
| Name: | Gregg Wm. Givens | ||
| Title: | Treasurer | ||
| SERVICER: | DST SYSTEMS, INC. | ||
| By: | /s/ Gregg Wm. Givens | ||
| Name: | Gregg Wm. Givens | ||
| Title: | Vice President & Chief Accounting Officer | ||
[Signature Page to Purchase and Contribution Agreement]
EXHIBIT A
CREDIT AND COLLECTION POLICY
| Exhibit A |
EXHIBIT B
DEPOSIT ACCOUNTS
| Name and Address of Deposit Bank(s) | Name of Accountholder | Account Number(s) | Lock-Box Number(s) and Address(es) | |||
| Bank of America, N.A. 225 N. Calvert St Mail Code: MD4-301-10-38 Baltimore, MD 21202 | Fountain City Finance, LLC Collection Account for the benefit of Bank of America, National Association as Agent | 3750899348 | Lockbox 2454-DST Systems Bank of America 2454 Collection Center Dr Chicago, IL 60693 | |||
| Bank of America, N.A. 225 N. Calvert St Mail Code: MD4-301-10-38 Baltimore, MD 21202 | Fountain City Finance, LLC Collection Account for the benefit of Bank of America, National Association as Agent | 3750899348 | Lockbox 5516-DST Output Bank of America 5516 Collection Center Dr Chicago, IL 60693 | |||
| Bank of America, N.A. 225 N. Calvert St Mail Code: MD4-301-10-38 Baltimore, MD 21202 | Fountain City Finance, LLC Collection Account for the benefit of Bank of America, National Association as Agent | 3750899348 | Lockbox 13804-DST Health Solutions Bank of America 13804 Collection Center Dr Chicago, IL 60693 |
| Exhibit B |
EXHIBIT C
ADDRESSES
| SELLER: | DST Systems, Inc. 333 West 11th Street, 5th Floor Kansas City, MO 64105 Attention: Gregg Wm. Givens Facsimile No. 816 ###-###-#### |
| PURCHASER: | Fountain City Finance, LLC 333 West 11th Street, 5th Floor Kansas City, MO 64105 Attention: Gregg Wm. Givens Facsimile No. 816 ###-###-#### |
| Exhibit C |
EXHIBIT D
SELLER UCC INFORMATION
| Name: | DST Systems, Inc. |
| Address: | 333 West 11th Street, Kansas City, MO 64105 |
| Jurisdiction of Organization: | Delaware |
| UCC Filing Office: | Secretary of State of Delaware |
| Prior Names: | None |
| D/B/A Names: | None |
| Exhibit D |
