1
EXHIBIT 4.4
(1995 10-K)
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
DATED AS OF AUGUST 30, 1995
AMONG
APPLIED POWER INC.,
XXXXX XXXXXX CORPORATION,
XXXXXX LINE INC.,
GB ELECTRICAL, INC.
AND
CERTAIN OTHER SUBSIDIARIES
FROM TIME TO TIME PARTIES HERETO
AS SELLERS
APPLIED POWER INC.
AS SELLERS' REPRESENTATIVE AND SERVICER
AND
PNC BANK, NATIONAL ASSOCIATION AND OTHER FINANCIAL
INSTITUTIONS FROM TIME TO TIME PARTIES HERETO
AS PURCHASERS
AND
PNC BANK, NATIONAL ASSOCIATION
AS AGENT
2
TABLE OF CONTENTS
Section Page
------- ----
ARTICLE I
THE COMMITMENT
1.01. Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02. Commitment Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.03. Purchase and Reinvestment Limits . . . . . . . . . . . . . . . . . . . . . . . 3
1.04. Making Purchases from Sellers . . . . . . . . . . . . . . . . . . . . . . . . 3
1.05. Voluntary Termination of Commitment or
Reduction of Purchase Limit . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.06. Investment Multiples; Number of Undivided Interests . . . . . . . . . . . . . 4
1.07. Limitation of Ownership Interest . . . . . . . . . . . . . . . . . . . . . . . 4
1.08. Addition of Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
UNDIVIDED INTEREST AND PURCHASERS' SHARE
2.01. Undivided Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.02. Frequency of Computation of Undivided Interest . . . . . . . . . . . . . . . . 6
2.03. Purchasers' Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.04. Loss Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.05. Earned Discount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.06. Servicer's Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.07. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.08. Purchasers' Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III
SETTLEMENTS
3.01. Non-Liquidation Settlement Procedures for
Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.02. Liquidation Settlement Procedures for
Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.03. General Settlement Procedures;
Reduction of Purchaser's Investment . . . . . . . . . . . . . . . . . . . . . 13
3.04. Credit Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.05. Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.06. Payments and Computations, Etc . . . . . . . . . . . . . . . . . . . . . . . . 15
3.07. Dividing or Combining Undivided Interests . . . . . . . . . . . . . . . . . . 16
3.08. Treatment of Collections and Deemed Collections . . . . . . . . . . . . . . . 16
3.09. Repurchases for Administrative Convenience . . . . . . . . . . . . . . . . . . 17
3.10. Sale of a Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IV
FEES AND YIELD PROTECTION
4.01. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.02. Yield Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
-i-
3
Section Page
------- ----
ARTICLE V
CONDITIONS PRECEDENT
5.01. Conditions Precedent to Effectiveness . . . . . . . . . . . . . . . . . . . . 20
5.02. Conditions Precedent to All Purchases and
Reinvestments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01. Representations and Warranties of Sellers . . . . . . . . . . . . . . . . . . 22
ARTICLE VII
GENERAL COVENANTS OF SELLERS
7.01. Affirmative Covenants of Sellers . . . . . . . . . . . . . . . . . . . . . . . 26
7.02. Reporting Requirements of Sellers . . . . . . . . . . . . . . . . . . . . . . 28
7.03. Negative Covenants of Sellers . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE VIII
ADMINISTRATION AND COLLECTION
8.01. Designation of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.02. Duties of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.03. Rights of the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.04. Responsibilities of each Seller . . . . . . . . . . . . . . . . . . . . . . . 35
8.05. Further Action Evidencing Purchases . . . . . . . . . . . . . . . . . . . . . 35
8.06. Application of Collections . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE IX
TERMINATION EVENTS
9.01. Termination Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
9.02. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE X
THE AGENT
10.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.02. Agent's Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.03. Agent and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
10.04. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
10.05. Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
10.06. Credit Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
10.07. Notices, etc. to Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
-ii-
4
Section Page
------- ----
ARTICLE XI
ASSIGNMENT OF UNDIVIDED INTERESTS
11.01. Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.02. Documentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.03. Rights of Assignee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.04. Assignment by Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE XII
INDEMNIFICATION
12.01. Indemnities by Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE XIII
MISCELLANEOUS
13.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
13.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
13.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
13.04. Binding Effect; Assignability . . . . . . . . . . . . . . . . . . . . . . . . . 46
13.05. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
13.06. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
13.07. Captions and Cross References . . . . . . . . . . . . . . . . . . . . . . . . . 47
13.08. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
13.09. Allocation Among Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
-iii-
5
DEFINITIONAL APPENDIX
SCHEDULE I - DEFINITIONS
SCHEDULE IA - FOREIGN OBLIGORS
SCHEDULE IB - DUE DATES
SCHEDULE IC - SPECIAL CONCENTRATION LIMITS
SCHEDULE ID - PRICING GRID
LIST OF EXHIBITS
EXHIBIT IA Assignment
EXHIBIT IB Certificate of Assignments
EXHIBIT IC Forms of Contracts
EXHIBIT ID Description of Credit and Collection Policy
EXHIBIT IE Form of Lock-Box Agreement
EXHIBIT IF Form of Periodic Report
EXHIBIT 1.08(b) Form of Joinder Agreement
EXHIBIT 5.01(i) Form of Opinion of Counsel for Sellers
EXHIBIT 6.01(i) Description of Material Adverse Changes
EXHIBIT 6.01(j) Description of Litigation
EXHIBIT 6.01(n) List of Offices of Sellers where Records Are Kept
EXHIBIT 6.01(o) List of Lock-Box Banks
-iv-
6
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of August 30, 1995
THIS IS AN AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, among
APPLIED POWER INC., a Wisconsin corporation having its principal office at
00000 X. Xxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx 00000 ("API"), XXXXX XXXXXX
CORPORATION, a Massachusetts corporation having its principal office at 00
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx ("BWC"), XXXXXX LINE INC., a
Massachusetts corporation, having its principal office at 000 Xxxx Xxxx Xxxx.,
Xxxxxxxxx, Xxxxxxxxxxxxx ("XXX"), XX ELECTRICAL, INC., a Wisconsin corporation,
having its principal office at 0000 X. Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx ("GB";
API, BWC, WLI, GB, together with other Subsidiaries of API that may become
parties hereto from time to time pursuant to Section 1.08, are collectively
called "Sellers" and individually "Seller"), API, as representative of Sellers
(in such capacity, the "Sellers' Representative"), PNC BANK, NATIONAL
ASSOCIATION, a national banking association having its principal office at
Xxxxx Xxxxxx xxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (together with
the other financial institutions that may become parties hereto from time to
time, "Purchasers"), and PNC BANK, NATIONAL ASSOCIATION, a national banking
association having its principal office at Fifth Avenue and Wood Street,
Pittsburgh, Pennsylvania 15265 ("PNC Bank"), as agent for the Purchasers (in
such capacity, the "Agent"). Unless otherwise indicated, certain terms that
are capitalized and used throughout this Agreement are defined in Schedule I.
Background
1. Sellers, Sellers' Representative, PNC Bank as Purchaser and
PNC Bank, as Agent entered into the Receivables Purchase Agreement, dated as of
August 31, 1994, as amended by the First Amendment to Receivables Purchase
Agreement, dated as of May 4, 1995 (the "Original Purchase Agreement"). The
parties hereto wish to amend and restate the Original Purchase Agreement in its
entirety as set forth herein.
2. Each Seller has, and expects to have, Pool Receivables in
which it intends to sell interests referred to herein as Undivided Interests.
Sellers have requested the Agent, on behalf of Purchasers, and the Agent and
Purchasers have agreed, subject to the terms and conditions contained in this
Agreement, to purchase such Undivided Interests from Sellers from time to time
during the term of this Agreement.
7
3. Sellers and Purchasers also desire that, subject to the terms
and conditions of this Agreement, certain of the daily Collections in respect
of such Undivided Interests be reinvested in Pool Receivables through the sale
by Sellers to the Agent, on behalf of Purchasers, of additional Undivided
Interests in the Pool Receivables, such daily reinvestment of Collections to be
effected by an automatic daily adjustment to such Undivided Interests, and to
be intended to permit each Purchaser to maintain its Total Investment fully
invested in uncollected Pool Receivables.
4. PNC Bank has been requested, and is willing, to act as the
Agent.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto hereby amend and restate the
Original Purchase Agreement in its entirety and agree as follows:
ARTICLE I
THE COMMITMENT
SECTION 1.01. Commitment. On the terms and subject to the conditions
set forth in this Agreement (including Article V):
(a) Purchases. The Agent, on behalf of Purchasers, shall
purchase from Sellers undivided, percentage interests in Pool
Receivables by making Purchases of Undivided Interests from time to
time during the period from the date hereof to the Commitment
Termination Date.
(b) Reinvestments. Pursuant to Section 3.01, the Agent,
on behalf of Purchasers, shall make Reinvestments by permitting
Servicer to cause certain of the Collections in respect of the
Undivided Interests to be applied to the purchase of additional
undivided percentage interests in the Pool Receivables, thereby
resulting in an appropriate readjustment of such Undivided Interests.
Each Purchaser's obligation to fund such Purchases and Reinvestments is herein
called its "Commitment".
SECTION 1.02. Commitment Termination Date. The "Commitment
Termination Date" shall be the earlier to occur of (i) August 30, 1998 (herein,
as the same may be extended, called the "Scheduled Commitment Termination
Date"), and (ii) the date of termination of the Commitment pursuant to Section
1.05 or Section 9.02.
-2-
8
SECTION 1.03. Purchase and Reinvestment Limits. Under no
circumstances shall any Purchaser fund any Purchase or Reinvestment to the
extent that, after giving effect to such Purchase or Reinvestment, as the case
may be:
(a) Purchase Limit. The Aggregahasers' Investments under
this Agreement would exceed an amount (the "Purchase Limit")
equal to $50,000,000, as such amount may be reduced pursuant to
Section 1.05; or
(b) Participation Amounts Limit. The Aggregate
Participation Amounts under this Agreement would exceed an amount (the
"Participation Amounts Limit") equal to 100% of the Net Pool Balance;
or
(c) Percentage Limit. The Dollar Amount of any
Purchaser's Total Investment would exceed its Percentage of the
Purchase Limit; or
(d) Foreign Currency Limit. That portion of the
Aggregate Purchasers' Investments that is funded in Approved
Currencies other than U.S. Dollars would exceed $20,000,000 (the
"Foreign Currency Limit"); or
(e) Foreign Receivables Limit. The aggregate Unpaid Balance
of Receivables denominated in the Approved Currency in which such
Purchase or Reinvestment was made is less than the sum of the
Purchasers' Investments of each Undivided Interest funded in such
Approved Currency (the "Foreign Receivables Limit").
SECTION 1.04. Making Purchases from Sellers. (a) Notice of
Purchase. Each Purchase from Sellers by the Agent, on behalf of Purchasers,
shall be made on notice from Sellers' Representatives to the Agent received by
the Agent not later than 12:00 noon (Pittsburgh time) on the fourth Business
Day next preceding the date of such proposed Purchase. Each such notice of a
proposed Purchase shall specify the desired Dollar Amount thereof (which shall
not be less than $1,000,000 in the aggregate for all Sellers), the amount due
to each Seller, the date (which shall be a Business Day), the currency in which
such Purchase is to be made (which shall be an Approved Currency), the amount
of such Purchase in such Approved Currency and the duration of the initial
Yield Period for such Purchase. The Agent shall promptly thereafter notify
each Purchaser of such proposed Purchase.
(b) Funding of Purchase. On the date of each Purchase, each
Purchaser shall, upon satisfaction of the applicable conditions set forth in
Article V, make available to the Agent not later than 1:00 p.m. (Pittsburgh
time) at such account as the Agent may designate its Percentage of the amount
of such Purchase
-3-
9
in immediately available funds, in the Approved Currency designated in the
notice delivered by Sellers' Representatives pursuant to paragraph (a) and
after receipt by the Agent of such funds, the Agent will make such funds
immediately available to each Seller, in the amount set forth for such Seller
in the notice delivered pursuant to Section 1.04, at such office not later than
2:00 p.m. (Pittsburgh time).
(c) Notice of Discount Rate; Foreign Currency Limit. The Agent
shall, two Business Days prior to the date of each Purchase of an Undivided
Interest and two Business Days prior to the first day of each successive Yield
Period for such Undivided Interest, (i) calculate the Dollar Amount of the
Purchasers' Investments in each Undivided Interest that is denominated in an
Approved Currency other than U.S. Dollars and (ii) notify the Sellers'
Representative and each Purchaser of the Discount Rate for such Yield Period
and whether the Sellers have exceeded the Foreign Currency Limit.
SECTION 1.05. Voluntary Termination of Commitment or Reduction of
Purchase Limit. Sellers' Representative may, upon at least thirty days' notice
to the Agent, terminate the Commitments in whole or reduce in part the unused
portion of the Purchase Limit; provided, however, that (i) each partial
reduction shall be in an amount equal to $1,000,000 or an integral multiple
thereof and (ii) after giving effect to such partial reduction, the remaining
Purchase Limit will not be less than $10,000,000.
SECTION 1.06. Investment Multiples; Number of Undivided Interests.
No Undivided Interest, whether created by purchase pursuant to Section 1.04 or
by reinvestment pursuant to Section 3.01 or by division pursuant to Section
3.07, shall have an initial Dollar Amount of the related Purchasers'
Investments of less than $1,000,000 and each Undivided Interest when created,
whether by purchase, division or combination, shall have a Dollar Amount of the
related Purchasers' Investments equal as near as practicable to an integral
multiple of $100,000. No Undivided Interest will have related Purchasers'
Investments funded in more than one currency. The number of Undivided
Interests hereunder at any one time, after giving effect to any Purchase,
division or combination, shall not exceed ten (10).
SECTION 1.07. Limitation of Ownership Interest. Nothing in this
Agreement shall be interpreted as providing any Purchaser with an ownership
interest in any Receivables that are not Pool Receivables.
SECTION 1.08. Addition of Sellers. Additional Subsidiaries of API
that are organized under the laws of a foreign country, or subdivision thereof,
may be added as Sellers hereunder, provided
-4-
10
that the following conditions are satisfied on or before the date of such
addition:
(a) Sellers' Representative shall have given the Agent and each
Purchaser at least five (5) Business Days' prior written notice of such
proposed addition and the identity of the proposed additional Seller;
(b) such proposed additional Seller has executed and delivered to the
Agent an agreement substantially in the form attached hereto as Exhibit 1.08(b)
(each, a "Joinder Agreement") and a Certificate;
(c) such proposed additional Seller has delivered to the Agent a
certificate of its Secretary or Assistant Secretary or Authorized Agent
certifying the names and true signatures of the officers authorized on its
behalf to sign the Joinder Agreement and the other Agreement Documents to be
delivered by it (on which certificate the Agent and each Purchaser may
conclusively rely until such time as the Agent shall receive from such Seller a
revised certificate meeting the requirements of this subsection (c));
(d) such proposed additional Seller has delivered to the Agent a copy
of its organizational documents, duly certified by its Secretary or Assistant
Secretary;
(e) no event has occurred and is continuing, or would result from
such addition, which constitutes a Termination Event or Unmatured Termination
Event; and
(f) the Commitment Termination Date shall not have occurred.
ARTICLE II
UNDIVIDED INTEREST AND PURCHASERS' SHARE
SECTION 2.01. Undivided Interest. For purposes of this Agreement,
"Undivided Interest" means, at any time, an undivided percentage ownership
interest at such time in (i) all then outstanding Pool Receivables, (ii) all
Related Security with respect to such Pool Receivables, and (iii) all
Collections with respect to, and other proceeds of, such Pool Receivables.
Such undivided percentage interest for any time for such Undivided Interest
shall be computed as:
PA = PI + LR
--- --------
NPB NPB
-5-
11
where:
PA = Participation Amount of such
Undivided Interest = PI + LR;
PI = the Dollar Amount of the Purchasers' Investments as to
such Undivided Interest at the time of such
computation, as determined per Section 2.03;
LR = the Loss Reserve as to such Undivided Interest, if any,
at the time of such computation, as determined per
Section 2.04; and
NPB = the Net Pool Balance at the time of such computation,
as determined per Section 2.07.
The "related" Undivided Interest with respect to any of the foregoing items
shall mean the Undivided Interest as to which such item is calculated. The
then sum of all Participation Amounts of all Undivided Interests shall
constitute "Aggregate Participation Amounts". Each Purchaser shall be entitled
to its Percentage of each Undivided Interest, and any reference to a
Purchaser's Undivided Interest shall refer to such Percentage thereof.
SECTION 2.02. Frequency of Computation of Undivided Interest. Each
Undivided Interest shall be initially computed as of the opening of business of
Servicer on the date of Purchase of such Undivided Interest from Sellers.
Thereafter until such Undivided Interest shall be reduced to zero, such
Undivided Interest shall be deemed to be automatically recomputed as of the
close of business of Servicer on each day, and such Undivided Interest shall
constitute the percentage ownership interest in Pool Receivables on such date
held by the Agent, on behalf of its Purchasers, with respect to such Undivided
Interest. Such Undivided Interest shall become zero at such time as the
Purchasers shall have received the Earned Discount for such Undivided Interest
in the Approved Currency of such Undivided Interest, shall have recovered the
related Purchasers' Investments in the Approved Currency of such Undivided
Interest and shall have received all other amounts payable to Purchasers
pursuant to this Agreement, and Servicer shall have received the accrued
Servicer's Fee for such Undivided Interest. Such Undivided Interest shall
remain constant from the time as of which any such computation or recomputation
is made until the time as of which the next such recomputation, if any, shall
be made.
SECTION 2.03. Purchasers' Investment. "Purchasers' Investments" as
to any Undivided Interest means an amount equal to the original amount paid to
Sellers for such Undivided
-6-
12
Interest at the time of its acquisition by Purchasers pursuant to Sections 1.01
and 1.04 and by Reinvestments pursuant to Section 3.01, reduced from time to
time by Collections received and distributed on account of such Purchasers'
Investments pursuant to Sections 3.01 and 3.02. Each Purchaser's "Outstanding
Investment" as to any Undivided Interest means an amount equal to such
Purchaser's Percentage of the Purchasers' Investments as to such Undivided
Interest. Each Purchaser's "Total Investment" at any time means the sum of all
of such Purchaser's Outstanding Investments for all Undivided Interests. The
"related" Purchasers' Investments with regard to a Yield Period or Undivided
Interest means the Purchasers' Investments calculated with regard to such Yield
Period or Undivided Interest, as the case may be. The then sum of the Dollar
Amount of all Purchasers' Investments for all Undivided Interests shall
constitute "Aggregate Purchasers' Investments".
SECTION 2.04. Loss Reserve. The "Loss Reserve" for each Undivided
Interest that is denominated in U.S. Dollars means, at any time (i) prior to
the occurrence of a Termination Event, zero, and (ii) after the occurrence and
during the continuance of a Termination Event, an amount determined as follows:
LR = RP x PI
where:
LR = the Loss Reserve of such Undivided Interest at the time of
computation;
PI = the Purchasers' Investments of such Undivided Interest on
such day, as determined pursuant to Section 2.03; and
RP = the Recourse Percentage on such day.
If the Aggregate Participation Amounts exceed the Participation Amount Limit on
the day on which a Termination Event occurs after giving effect to the
inclusion of the Loss Reserve as set forth above, Sellers jointly and
severally, on a recourse basis, agree to deposit into the Agent's Account an
amount equal to such excess; such amounts shall be held by the Agent for the
benefit of the Purchasers, and shall be applied to reduce Purchasers'
Investments of Undivided Interests denominated in U.S. Dollars on the next
occurring Settlement Date(s).
SECTION 2.05. Earned Discount. The "Earned Discount" for any
Undivided Interest for each day in a related Yield Period means an amount
determined as follows:
-7-
13
ED = PI x DR x 1/360 (or 1/365 (366) in the case of any
Undivided Interest denominated in British Pounds Sterling);
where:
ED = Earned Discount of such Undivided Interest at the
time of computation;
PI = the Purchasers' Investments of such Undivided
Interest on such day, as determined pursuant to
Section 2.03; and
DR = the Discount Rate for such Undivided Interest on such
day during such Yield Period, as determined pursuant
to Section 2.07.
Notwithstanding any other provision of this Agreement to the contrary, Earned
Discount shall be a joint and several recourse obligation of the Sellers. No
provision of this Agreement or the Certificate shall require the payment or
permit the collection of Earned Discount in excess of the maximum permitted by
applicable law. Earned Discount for any Undivided Interest shall not be
considered paid by any distribution if at any time such distribution is
rescinded or must otherwise be returned for any reason. Earned Discount shall
be calculated and paid in the Approved Currency of the related Undivided
Interest.
SECTION 2.06. Servicer's Fee. The "Servicer's Fee" for any
Undivided Interest at any time means (i) an amount accrued for each day equal
to 1.00% per annum times the Dollar Amount of the related Purchasers'
Investments at the close of business on such day, times 1/360; or (ii) on
Servicer's reasonable request from and after any time that API shall no longer
be Servicer, an alternative amount charged by Servicer to perform its
obligations under this Agreement. Notwithstanding any other provision to this
Agreement to the contrary, Servicer's Fee shall be a joint and several recourse
obligation of the Sellers.
SECTION 2.07. Certain Definitions. For purposes hereof, the
following terms shall have the meanings as indicated:
"Bank Rate" for any Yield Period for the related Undivided Interest
means an interest rate per annum equal to the Eurocurrency Rate (Reserve
Adjusted) for such Yield Period; provided, however, that if it shall become
unlawful for the Agent to obtain funds in the interbank market in the related
currency in order to make, fund or maintain any Purchase hereunder, or if such
funds shall not be reasonably available to the Agent, then the "Bank Rate" for
any Yield Period for such Undivided Interest
-8-
14
shall be equal to the Alternate Reference Rate for such Yield Period.
"Discount Rate" for any Yield Period for any related Undivided
Interest means:
(a) in the case of an Undivided Interest other than one
referred to in clause (b), the sum of (1) the Bank Rate for such
Undivided Interest for such Yield Period plus (2) the then applicable
Spread; and
(b) in the case of an Undivided Interest funded at a time
when a Termination Event or Unmatured Termination Event has occurred
and is continuing, a rate per annum equal for each day during such
Yield Period to the higher of (A) the Bank Rate for such Undivided
Interest, plus 2% and (B) the Alternate Reference Rate in effect on
such day plus 2% per annum.
"Net Pool Balance" means at any time the Dollar Amount of the Unpaid
Balance of the Eligible Receivables in the Receivables Pool at such time, as
reduced by (i) the sum of the aggregate amount by which the Unpaid Balance of
all Pool Receivables of each Obligor that are denominated in U.S. Dollars
exceeds the Concentration Limit for such Obligor at such time and (ii) the
outstanding amounts payable by WLI to Arredi Tecnici Villa S.p.A. at such time.
For purposes hereof, "Concentration Limit" for any Obligor means at any time
the greater of (x) the Special Concentration Limit for such Obligor and (y)
2.5% of the aggregate Unpaid Balance of the Eligible Receivables in the
Receivables Pool that are denominated in U.S. Dollars at such time. "Special
Concentration Limit" for (1) the United States government, or any agency
thereof, means 10% of the aggregate Unpaid Balance of the Eligible Receivables
in the Receivables Pool that are denominated in U.S. Dollars at such time and
(2) for any other Obligor means the amount designated for such Obligor on
Schedule IC or the amount designated as such by the Agent in a writing
delivered to Sellers' Representative; it being understood and agreed that the
Agent, in setting any Special Concentration Limit for any Obligor, shall be
entitled to consider, among other things, the credit exposure of each Purchaser
to such Obligor arising in connection with this Agreement and other agreements
to which such Purchaser is a party; provided that the Required Purchasers may
change the Special Concentration Limit for any Obligor, at their sole
discretion, at any time by written notice thereof to the Sellers'
Representative, the Agent and all of the Purchasers. In the case of any
Obligor that is an Affiliate of any other Obligor (an "Affiliated Obligor"),
the Concentration Limit, the Special Concentration Limit and the Receivables
related thereto shall be
-9-
15
calculated as if such Obligor and such Affiliated Obligor were one Obligor.
"Spread" means the percentage set forth under the then applicable Debt
to Capital Ratio on Schedule ID.
SECTION 2.08. Purchasers' Share. "Purchasers' Share" of any
Undivided Interest with regard to any Collections of Pool Receivables received
(or deemed received) by any Seller or Servicer on any day shall be determined
as an amount equal to such Collections, times:
(a) if such day is not a Liquidation Day, such Undivided
Interest on such day expressed as a decimal, and
(b) if such day is a Liquidation Day, either (i) such
Undivided Interest on the day immediately preceding the first
Liquidation Day to have occurred during the then current Liquidation
Period or (ii) if higher, upon the request of the Agent, such
Undivided Interest on such Liquidation Day;
provided that after such time as an Undivided Interest shall equal zero the
Purchasers' Share of Collections therefor shall also equal zero.
ARTICLE III
SETTLEMENTS
SECTION 3.01. Non-Liquidation Settlement Procedures for
Collections. (a) Daily Procedure. On each day (other than a Liquidation Day)
with regard to each Yield Period for each Undivided Interest, Servicer shall
deem an amount equal to Purchasers' Share (as determined in Section 2.08) of
Collections of Pool Receivables received or deemed received on such day to be
received in respect of such Undivided Interest; and
(i) out of Purchasers' Share of such Collections of Pool
Receivables in respect of such Undivided Interest, hold in trust for
the benefit of Purchasers an amount equal to the Earned Discount and
Servicer's Fee accrued through such day for such Undivided Interest
and not previously so held for the benefit of Purchasers or paid by
the Sellers,
(ii) apply an amount equal to the remainder of
Purchasers' Share of such Collections (the "Remaining Collections") to
reduce the Purchasers' Investments of such Undivided Interest (it
being understood that such amount
-10-
16
need not be physically paid to the Agent or the Purchasers under this
clause (ii)),
(iii) after such reduction, apply such Remaining Collections
to the Reinvestment, for the benefit of Purchasers, of additional
undivided interests in Pool Receivables payable in the Approved
Currency of such Undivided Interest by recomputation of such Undivided
Interest pursuant to Section 2.02 as of the end of such day, thereby
increasing the related Purchasers' Investments, and
(iv) pay to Sellers' Representative such Remaining
Collections.
The recomputed Undivided Interest shall constitute the percentage ownership
interest in Pool Receivables on such day held by Purchasers with regard to such
Undivided Interest.
(b) Settlement Date Procedure. On each Settlement Date for each
Undivided Interest, for each day in the related Yield Period that is not a
Liquidation Day for such Undivided Interest, Servicer shall deposit to the
Agent's Account, the amounts set aside as described in Section 3.01(a)(i); it
being understood that in the event that the amounts so set aside are
insufficient to satisfy in full the Earned Discount and accrued Servicer's Fee
payable with respect to such Undivided Interest, Sellers, jointly and
severally, agree to deposit such deficit to the Agent's Account on such
Settlement Date in the Approved Currency of such Undivided Interest.
(c) Order of Application. Upon receipt by the Agent of funds
distributed pursuant to subsection (b), the Agent shall distribute to each
Purchaser such Purchaser's Percentage of such funds in payment of the Earned
Discount on such Purchaser's Outstanding Investment related to such Undivided
Interest and to Servicer in payment of the accrued Servicer's Fee payable with
respect to such Undivided Interest. If there shall be insufficient funds on
deposit for the Agent to distribute funds in payment in full of the
aforementioned amounts, the Agent shall distribute funds, first, to Purchasers
in payment of the Earned Discount for such Undivided Interest, and second, in
payment of the accrued Servicer's Fee payable with respect to such Undivided
Interest.
(d) Currencies. Each Undivided Interest, and the Earned Discount
thereon, shall be payable in the Approved Currency in which such Undivided
Interest was originally funded by the Purchasers.
SECTION 3.02. Liquidation Settlement Procedures for Collections.
(a) Daily Procedure. On each Liquidation Day with
-11-
17
regard to each Yield Period for each Undivided Interest, Servicer shall set
aside and hold in trust for Purchasers, Purchasers' Share of the Collections of
Pool Receivables in respect of such Undivided Interest for such Liquidation Day
by depositing such Collections within one Business Day of Servicer's receipt of
good funds therefor into a bank account acceptable to the Agent located at PNC
Bank in which no other funds shall be deposited.
(b) Settlement Date Procedure. On each Settlement Date for each
Undivided Interest, if one or more Liquidation Days for such Undivided Interest
occurs during the related Yield Period, Servicer shall deposit to the Agent's
Account the amounts set aside pursuant to Section 3.02(a) and Sellers shall
deposit to the Agent's Account the Earned Discount for such Undivided Interest
in the Approved Currency of such Undivided Interest, the Servicer's Fee payable
with respect to such Undivided Interest and all other amounts owed by Sellers
to the Purchasers hereunder, provided that the aggregate amount of such
deposits shall not exceed the sum of (i) the Earned Discount for such Undivided
Interest, (ii) the related Purchasers' Investments of such Undivided Interest,
(iii) the aggregate of other amounts owed hereunder by Sellers to the
Purchasers, and (iv) the accrued Servicer's Fee payable with respect to such
Undivided Interest. Any amounts set aside pursuant to Section 3.02(a) and not
required to be deposited to the Agent's Account pursuant to the next preceding
sentence shall be held for application to the next maturing Undivided Interest
denominated in the same Approved Currency.
(c) Order of Application. Upon receipt of funds deposited to the
Agent's Account pursuant to Section 3.02(b), the Agent shall distribute (i) to
each Purchaser, its Percentage of such funds (A) in payment of such Purchaser's
Percentage of the Earned Discount for such Undivided Interest, (B) in reduction
of the related Purchaser's Outstanding Investment and (C) in payment of any
other amounts owed by Sellers hereunder to such Purchaser, in each case until
reduced to zero, and (ii) any remaining funds to Servicer in payment of the
accrued Servicer's Fee payable with respect to such Undivided Interest, also
until reduced to zero. If there shall be insufficient funds on deposit for the
Agent to distribute funds in payment in full of the aforementioned amounts, the
Agent shall distribute funds, first, in payment of the Earned Discount for such
Undivided Interest, second, in reduction of related Purchasers' Investments,
third, in payment of other amounts payable to Purchasers, and fourth, in
payment of the Servicer's Fee payable with respect to such Undivided Interest.
SECTION 3.03. General Settlement Procedures; Reduction of Purchaser's
Investment.
-12-
18
(a) Deemed Collections. If on any day the Unpaid Balance of any
Pool Receivable is (i) reduced as a result of any defective, rejected or
returned merchandise or services, any cash discount, or any adjustment by any
Seller or any Affiliate of any Seller (other than any adjustment permitted by
Section 8.02(a)(i) unless the Agent shall reasonably object thereto within 30
days of being informed thereof) or (ii) reduced or cancelled as a result of a
setoff in respect of any claim by the Obligor thereof against any Seller or any
Affiliate of any Seller or any other Person (whether such claim arises out of
the same or a related or an unrelated transaction), or (iii) reduced on account
of the obligation of any Seller to pay to the related Obligor any rebate or
refund, such Seller shall be deemed to have received on such day a Collection
of such Receivable in the amount of such reduction or cancellation. If on any
day any of the representations or warranties of any Seller set forth in Section
6.01(l) or (p) is no longer true with respect to a Pool Receivable, such Seller
shall be deemed to have received on such day a Collection of such Pool
Receivable in full.
(b) Unreinvested Collections. Collections that may not be
reinvested by means of Reinvestments in an Undivided Interest on account of the
application of the Participation Amounts Limit, the Purchase Limit, the Foreign
Receivables Limit or the Foreign Purchase Limit pursuant to Section 2.01 shall
be so reinvested as soon as practicable without violating such Participation
Amounts Limit, Purchase Limit, the Foreign Receivables Limit or Foreign
Purchase Limit, as the case may be. To the extent and so long as such
Collections may not be so reinvested, Servicer shall hold such Collections in
trust for the benefit of the Purchasers, for payment to the Agent on the
Settlement Date for the Yield Period in which such Collections are accumulated,
and the related Purchasers' Investments as to such Undivided Interest shall be
deemed reduced in the amount to be paid to the Agent only when in fact so paid.
During any Liquidation Period, upon one Business Day's written notice given by
the Agent to Sellers' Representative, Servicer shall pay in immediately
available funds such Collections to the Agent within one Business Day of
receipt thereof by Servicer.
(c) Allocations of Obligor's Payments. Except as provided in
Section 3.03(a) or as otherwise required by law or the underlying Contract, all
Collections received from an Obligor of any Receivable shall be applied to
Receivables then outstanding of such Obligor in the order of the age of such
Receivables, starting with the oldest such Receivable, except if payment is
designated by such Obligor for application to specific Receivables, in which
case it shall be applied to such specified Receivables.
-13-
19
SECTION 3.04. Credit Recourse. As of the last day of each calendar
month (a "Month End Date") during which a Liquidation Day has occurred, the
"Recourse Amount" shall be an amount equal to the Recourse Percentage of that
portion of the Aggregate Purchasers' Investments funded in U.S. Dollars as of
such Month End Date, if such Month End Date is the first date on which such
Recourse Amount is being calculated, or the Recourse Amount as of the previous
Month End Date in all other circumstances, minus the Unpaid Balances on such
current Month End Date of Receivables denominated in U.S. Dollars (other than
Receivables the Obligor of which is the United States government or a
subdivision or agency thereof) that became Defaulted Receivables prior thereto
(and on account of which the Recourse Amount had not been previously debited
("Recourse Unpaid Balances")) unless the Agent has notified Sellers'
Representative in writing two Business Days' before such current Month End Date
to refrain from so debiting the Recourse Amount with respect to any such
Defaulted Receivable, plus the Unpaid Balances on such current Month End Date
of all Receivables denominated in U.S. Dollars that were previously debited in
the calculation of the Recourse Amount on account of being Defaulted
Receivables but were no longer Defaulted Receivables on such current Month End
Date plus all Collections received or deemed received by any Seller or Servicer
during such month then ending on account of Defaulted Receivables that had
previously been debited in the calculation of the Recourse Amount, provided
that, the Recourse Amount shall never exceed 100% of Aggregate Participation
Amounts.
Sellers shall be deemed to have received Collections on each Month End
Date for a month in which a Liquidation Day has occurred in an amount equal to
the sum of (1) the amount of the Recourse Unpaid Balances referred to above,
but solely to the extent that, after giving effect to the credits above, the
Recourse Amount does not become a negative number; provided that if the Loss
Reserve is greater than zero, and Sellers have made the payment required by the
last sentence of Section 2.04, Sellers shall have no obligation to make
payments of deemed Collections pursuant to this clause (1), plus (2) the
aggregate amount of the Unpaid Balances of all Receivables denominated in a
currency other than U.S. Dollars that became Defaulted Receivables during such
month, plus (3) the aggregate amount of the Unpaid Balances of all Receivables
the Obligor of which is the United States government, or a subdivision or an
agency thereof, that became Defaulted Receivables during such month. Such
Collections shall be in addition to the Collections actually received on such
date.
SECTION 3.05. Reporting. Prior to the twenty-fifth calendar day in
each month (each a "Reporting Date") Servicer shall prepare and forward to the
Agent for each Purchaser a Periodic Report, as of the close of business of
Servicer on the
-14-
20
next preceding Month End Date, which Periodic Report shall include (i) the
aggregate Unpaid Balance of all Pool Receivables denominated in each Approved
Currency, (ii) a calculation of the Foreign Currency Limit as of the Settlement
Date immediately preceding such Month End Date, and (iii) an aging of each
Seller's Pool Receivables that are denominated in U.S. Dollars and are payable
by Obligors that are residents of the United States. At or prior to the day
Servicer is required to make a deposit with respect to a Settlement Period
pursuant to Section 3.01 or 3.02, Seller will advise the Agent of each
Liquidation Day occurring during such Settlement Period and of the allocation
of the amount of such deposit to each outstanding Undivided Interest; provided,
however, that if API is not Servicer, API shall advise Servicer of the
occurrence of each such Liquidation Day occurring during such Settlement Period
at or prior to such Liquidation Day.
SECTION 3.06. Payments and Computations, Etc. All amounts to be
paid or deposited by Sellers hereunder shall be paid or deposited in accordance
with the terms hereof no later than 12:00 noon (Pittsburgh time) on the day
when due in immediately available funds to a special account in the name of the
Agent, attention: Commercial Loan Operations, and maintained at PNC Bank's
office at Xxxxx Xxxxxx xxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or at
such other account or accounts as are designated by the Agent to the Sellers'
Representative (the "Agent's Account"). Sellers, jointly and severally, or
Servicer, as applicable, shall, to the extent permitted by law, pay to the
Agent interest on all amounts not paid or deposited when due hereunder at the
higher of (i) 2% above the Bank Rate then applicable to such overdue amount and
(ii) 2% per annum above the Alternate Reference Rate, in each case, payable on
demand, provided, however, that such interest rate shall not at any time exceed
the maximum rate permitted by applicable law. Such interest shall be retained
by the Agent except to the extent that such failure to make a timely payment or
deposit has continued beyond the date for distribution by the Agent of such
overdue amount to the Purchasers, in which case such interest accruing after
such date shall be for the account of, and distributed by the Agent, to the
Purchasers ratably in accordance with their respective interests in such
overdue amount. All computations of interest and all computations of Earned
Discount and fees hereunder shall be made on the basis of a year of 360 days
(or, in the case of Earned Discount for Undivided Interests denominated in
British Pounds Sterling, 365/366 days) for the actual number of days (including
the first but excluding the last day) elapsed.
SECTION 3.07. Dividing or Combining Undivided Interests.
-15-
21
(a) Division of Undivided Interests. Sellers' Representative may,
on notice received by the Agent not later than 12:00 noon (Pittsburgh time)
four Business Days before the last day of any Yield Period for any then
existing Undivided Interest, divide such existing Undivided Interest on such
last day into two or more new Undivided Interests, each such new Undivided
Interests having Purchasers' Investments as designated in such notice and all
such new Undivided Interests collectively having aggregate Purchasers'
Investments equal to the Purchasers' Investments of such existing Undivided
Interest.
(b) Combination of Undivided Interests. Sellers' Representative
may, on notice received by the Agent not later than 12:00 noon (Pittsburgh
time) four Business Days before the last day of any Yield Period for two or
more existing Undivided Interests denominated in the same Approved Currency, or
before the date of any proposed Purchase of an Undivided Interest denominated
in the same Approved Currency pursuant to Sections 1.01 and 1.04, on such last
day or such date of Purchase, as the case may be, combine into one new
Undivided Interest such existing and/or proposed Undivided Interests or any
combination thereof, such new Undivided Interest having Purchasers' Investments
equal to the aggregate Purchasers' Investments of such Undivided Interests so
combined.
(c) Effect of Division or Combination. On and after any division
or combination of Undivided Interests as described above, each of the new
Undivided Interests resulting from such division, or the new Undivided Interest
resulting from such combination, as the case may be, shall be a separate
Undivided Interest having Purchasers' Investments as set forth above, and shall
take the place of such existing Undivided Interest or Undivided Interests or
proposed Undivided Interest, as the case may be, in each case under and for all
purposes of this Agreement.
SECTION 3.08. Treatment of Collections and Deemed Collections.
Each Seller shall forthwith deliver to Servicer all Collections deemed received
by such Seller pursuant to Sections 3.03(a) and 3.04 in the Approved Currency
of the related Receivable and such Seller shall hold or distribute such
Collections as Earned Discount, accrued Servicer's Fee, repayment of
Purchasers' Investments, etc. to the same extent as if such Collections had
actually been received on such date. If Collections are then being paid to the
Agent, or lock boxes or accounts directly or indirectly owned or controlled by
the Agent, Servicer shall forthwith cause such deemed Collections to be paid to
the Agent or such lock boxes or accounts. So long as any Seller shall hold any
Collections or deemed Collections required to be paid to Servicer or the Agent,
it shall hold such
-16-
22
Collections in trust and separate and apart from its own funds and shall
clearly xxxx its records to reflect such trust.
SECTION 3.09. Repurchases for Administrative Convenience. If on the
last day of a Yield Period with respect to any Undivided Interest, the
Aggregate Purchasers' Investments equal or are less than 10% of the greatest
amount of Aggregate Purchasers' Investments at any time prior to such last day,
Sellers shall be entitled to repurchase all of the Undivided Interests from
Purchasers on the respective Settlement Date. Sellers' Representative shall
give the Agent at least four Business Days' prior written notice of such
repurchase and upon payment of the repurchase price therefor, as hereinafter
provided, the Agent and the Purchasers shall be obligated to reconvey their
entire interest in such Undivided Interest to the Seller or Sellers designated
by Sellers' Representative pursuant to an assignment acceptable to the parties,
but without representation or warranty except that the interest assigned is
free of offset, liens and other encumbrances created by the assignor. Sellers,
jointly and severally, shall pay such repurchase price in cash to the Agent in
an amount equal to, for each Undivided Interest, the sum of (i) Earned Discount
for such Undivided Interest in the Approved Currency of such Undivided
Interest, (ii) the related Purchasers' Investments therefor in the Approved
Currency of such Undivided Interest, (iii) the aggregate of other amounts then
owed hereunder by Sellers to the Purchasers, and (iv) the accrued Servicer's
Fee payable with respect to such Undivided Interest. Upon receipt of the
aforesaid repurchase price with regard to each Undivided Interest, the Agent
shall distribute it (i) to Purchasers (pro rata based on their respective
Percentages) (a) in payment of the Earned Discount for such Undivided Interest,
(b) in reduction of the related Purchasers' Investments and (c) in payment of
any other amounts owed by Sellers hereunder to Purchasers, in each case until
reduced to zero, and (ii) to Servicer in payment of the accrued Servicer's Fee
payable with respect to such Undivided Interest, also until reduced to zero.
SECTION 3.10. Sale of a Seller. In the event that API shall desire
to sell any Seller (other than API) to any person (the "Acquiring Entity"),
then, if the Majority Purchasers shall so request, as a condition to the
effectiveness of such sale, API shall require the Acquiring Entity to purchase
the Pool Receivables generated by such Seller, on the last day of a Yield
Period, for a purchase price, in cash in the Approved Currency in which such
Pool Receivables are denominated, in an amount equal to (i) the Purchasers'
Investments related to such Pool Receivables, (ii) Earned Discount on such
portion of Purchasers' Investments, (iii) the accrued Servicer's Fee payable
with respect to such portion of Purchasers' Investments and (iv) in the event
that the Purchasers' Investments with respect to Pool
-17-
23
Receivables generated by such Seller is greater than the Purchasers'
Investments related to the Yield Period maturing on the date of repurchase, any
costs incurred by Purchasers as a result of prepaying such excess portion of
the Purchasers' Investments prior to the last day of a Yield Period. Upon
receipt of the aforesaid repurchase price, the Agent shall distribute (i) to
the Purchasers (pro rata based on their respective Percentages) (a) in payment
of the Earned Discount for the related Purchasers' Investments and (b) in
reduction of the related Purchasers' Investments (beginning with that portion
related to the Yield Period ending on the date of repurchase, and then to the
Purchasers' Investments related to the Yield Period next maturing), and (ii) to
Servicer in payment of the accrued Servicer's Fee payable with respect to such
Purchasers' Investments, to the extent paid. In the event that API sells a
Seller without the occurrence of such repurchase, then, notwithstanding the
limitations on the Recourse Amount set forth in Section 3.04, API shall
repurchase any Defaulted Receivable originally generated by such Seller. In
any event, any Seller that has been sold shall no longer be entitled to sell or
reinvest in Undivided Interests in Receivables pursuant to this Agreement.
ARTICLE IV
FEES AND YIELD PROTECTION
SECTION 4.01. Fees. (a) Agent's Fee. Sellers shall pay to the
Agent for its own account such fees as the Agent and API may agree to from time
to time.
(b) Commitment Fee. From the date of the initial Purchase until
the Commitment Termination Date, Sellers, jointly and severally, shall pay to
the Agent, for the account of each Purchaser, a commitment fee ("Commitment
Fee") for each day in such period equal to (x) the percentage set forth below
the then applicable Debt to Capital Ratio on Schedule ID times (y) such
Purchaser's Percentage of the excess, if any, of the Purchase Limit over the
Aggregate Purchasers' Investments on the Determination Date immediately
preceding the first day of the related Yield Period divided by (z) 360. Such
Commitment Fee shall be paid in arrears, on each Settlement Date and on the
Commitment Termination Date, in the amount of such Commitment Fee that shall
have accrued during the period from the immediately preceding Settlement Date
to such Settlement Date or other period then ending for which no such fee shall
have been paid.
SECTION 4.02. Yield Protection. (a) If any Regulatory Change
occurring after the date hereof
-18-
24
(A) shall subject an Affected Party to any tax, duty or
other charge with respect to any Undivided Interest or Interests owned
by or funded by it, if any, or any obligations or right to make
Purchases or Reinvestments or to provide funding therefor, or shall
change the basis of taxation of payments to the Affected Party of any
Purchaser's Investments or Earned Discount made by or owed to or
funded by it or any other amounts due under this Agreement in respect
of any Undivided Interests owned by or funded by it or its obligations
or rights, if any, to make Purchases or Reinvestments or to provide
funding therefor (except for changes in the rate of tax on the overall
net income of such Affected Party imposed by the United States of
America or the jurisdiction in which such Affected Party's principal
executive office is located); or
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board of
Governors of the Federal Reserve System, but excluding any reserve
included in the determination of Earned Discount), special deposit or
similar requirement against assets of, deposits or obligations with or
for the account of (or with or for the account of any affiliate of),
or credit extended by, any Affected Party; or
(C) shall change the amount of capital maintained or
required or requested or directed to be maintained by such Affected
Party; or
(D) shall impose any other condition affecting any
Undivided Interests owned or funded by any Affected Party, or its
obligations or rights, if any, to make Purchases or Reinvestments or
to provide funding therefor;
and the result of any of the foregoing is or would be
(x) to increase the cost to or to impose a cost on (I) an
Affected Party funding or making or maintaining any Purchases or
Reinvestments, or any commitment of such Affected Party with respect
to any of the foregoing, or (II) the Agent for continuing its, or any
Seller's, relationship with any Purchaser,
(y) to reduce the amount of any sum received or
receivable by an Affected Party under this Agreement or under the
Certificate, or
(z) in the reasonable determination of such Affected
Party, to reduce the rate of return on the capital of an Affected
Party as a consequence of its obligations hereunder
-19-
25
or arising in connection herewith to a level below that which any such
Affected Party could otherwise have achieved,
then within thirty days after demand by such Affected Party, each Seller,
jointly and severally, shall pay directly to such Affected Party its pro rata
share of such additional amount or amounts as will compensate such Affected
Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify Sellers'
Representative and the Agent of any event of which it has knowledge occurring
after the date hereof which will entitle such Affected Party to compensation
pursuant to this Section 4.02; provided, however, no failure to give or delay
in giving such notification shall adversely affect the rights of any Affected
Party to such compensation; provided, further, however that no Affected Party
shall be entitled to claim additional amounts pursuant to this Section 4.02 for
any period occurring more than 120 days prior to the date of demand.
(c) In determining any amount provided for in this Section 4.02,
the Affected Party shall act reasonably and in good faith and will, to the
extent the increased costs or reductions in amounts received or receivable
relate to such Affected Party's purchases of similar assets in general and are
not specifically attributable to the Purchases or Reinvestments and other
amounts due hereunder, use any reasonable averaging and attribution methods and
which cover all similar purchases made by such Affected Party. Any Affected
Party when making a claim under this Section 4.02 shall submit to Sellers'
Representative a statement as to such increased cost or reduced return
(including calculation thereof in reasonable detail), which statement shall, in
the absence of manifest error, be conclusive and binding upon the Sellers.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness. The
effectiveness of this Amended and Restated Receivables Purchase Agreement is
subject to the condition precedent that the Agent shall have received on or
before the date of such Purchase the following, each (unless otherwise
indicated) dated such date, in form and substance satisfactory to the Agent:
(a) A Certificate duly executed by each Seller;
(b) A copy of the resolutions of the Board of Directors of each
Seller approving this Agreement, the Certificate and the
-20-
26
other Agreement Documents to be delivered by it hereunder and the transactions
contemplated hereby, certified by its Secretary or Assistant Secretary;
(c) Good standing certificates for each domestic Seller issued by
the Secretaries of State of Wisconsin and Massachusetts, as appropriate;
(d) A certificate of the Secretary or Assistant Secretary of each
Seller certifying the names and true signatures of the officers authorized on
its behalf to sign this Agreement, the Certificate and the other Agreement
Documents to be delivered by it hereunder (on which certificate the Agent and
each Purchaser may conclusively rely until such time as the Agent shall receive
from such Seller a revised certificate meeting the requirements of this
subsection (d));
(e) The Articles of Incorporation of each domestic Seller, duly
certified by the Secretary of State of Wisconsin or Massachusetts, as
appropriate, as of a recent date acceptable to Agent, together with a copy of
the By-laws of each Seller, duly certified by the Secretary or an Assistant
Secretary of such Seller;
(f) Acknowledgment copies of amendments to the Financing
Statements filed pursuant to the Original Purchase Agreement, which amendments
shall have been filed on or prior to the date hereof;
(g) A search report provided in writing to the Agent by CT
Corporation, listing all effective financing statements that name any domestic
Seller as debtor and that are filed in the jurisdictions in which filings were
made pursuant to subsection (f) above, together with copies of such financing
statements (none of which shall cover any Receivables or Contracts);
(h) A favorable opinion of Xxxxxxx & Xxxxx, counsel to Sellers, in
substantially the form of Exhibit 5.01(h);
(i) Evidence of the payment of any applicable Agent's fee; and
(j) Duly executed copy of Part I of a Periodic Report together
with a completed Schedule I thereto calculated as of July 31, 1995.
SECTION 5.02. Conditions Precedent to All Purchases and
Reinvestments. Each Purchase (including the initial Purchase) hereunder and
the right of Servicer to reinvest in Pool Receivables, on behalf of Purchasers,
those Collections allocable to an Undivided Interest pursuant to Section 3.01
shall be
-21-
27
subject to the further conditions precedent ("Conditions Precedent") that on
the date of such Purchase or Reinvestment the following statements shall be
true (and each Seller by accepting the amount of such Purchase, or a portion
thereof, or by receiving the proceeds of such Reinvestment, or a portion
thereof, shall be deemed to have certified that):
(i) The representations and warranties contained in Section
6.01 are correct on and as of such day as though made on and as of
such day and shall be deemed to have been made on such day,
(ii) No event has occurred and is continuing, or would
result from such Purchase or Reinvestment, which constitutes a
Termination Event or Unmatured Termination Event,
(iii) After giving effect to each proposed Purchase or
Reinvestment, (1) Aggregate Purchasers' Investments will not exceed
the Purchase Limit, (2) Aggregate Participation Amounts will not
exceed the Participation Amounts Limit, (3) the Dollar Amount of that
portion of the Aggregate Purchasers' Investments that is not
denominated in U.S. Dollars will not exceed the Foreign Currency Limit
and (4) the aggregate Unpaid Balance of Receivables denominated in the
Approved Currency in which such Purchase or Reinvestment is made is
not less than the sum of the Purchasers' Investments of each Undivided
Interest funded in such Approved Currency, and
(iv) The Commitment Termination Date shall not have occurred.
The absence of the occurrence of an Unmatured Termination Event shall not be a
Condition Precedent to (i) any Reinvestment being made with the proceeds of
Collections that were, on the same day, applied in reduction of the Purchasers'
Investments, or (ii) any other Reinvestment or any Purchase on any day which
does not cause the Aggregate Purchasers' Investments, after giving effect to
such Reinvestment or Purchase (and any Reinvestment referred to in clause (i)
next above) to exceed the Aggregate Purchasers' Investments as of the opening
of business on such day.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of Sellers. Each Seller
represents and warrants as follows:
-22-
28
(a) Organization and Good Standing. Such Seller is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has, all necessary
power, authority, and legal right to acquire and own the Pool Receivables.
(b) Due Qualification. Such Seller is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions where the failure to preserve and
maintain such qualification, licenses or approvals would materially adversely
affect (i) the interests of the Agent or any Purchaser hereunder, (ii) the
ability of such Seller or Servicer to perform their respective obligations
hereunder or (iii) the validity or enforceability of any Pool Receivable.
(c) Power and Authority; Due Authorization. Such Seller has (i) all
necessary power, authority and legal right to (A) execute and deliver this
Agreement and the documents to be executed and delivered in connection herewith
(together, the "Agreement Documents"), (B) carry out the terms of the Agreement
Documents, (C) sell and assign Undivided Interests on the terms and conditions
herein provided and (ii) duly authorized such sale and assignment to the Agent,
on behalf of the Purchasers, by all necessary corporate action; and such Seller
has duly authorized by all necessary corporate action the execution, delivery,
and performance of this Agreement and the other Agreement Documents.
(d) Valid Sale; Binding Obligations. This Agreement constitutes a
valid sale, transfer, and assignment of the Undivided Interests to the Agent,
on behalf of the Purchasers, enforceable against creditors of, and purchasers
from, such Seller; and this Agreement constitutes, and each other Agreement
Document to be signed by such Seller when duly executed and delivered will
constitute, a legal, valid and binding obligation of such Seller enforceable in
accordance with its terms, except, in the case of all the foregoing clauses, as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the other Agreement Documents and the fulfillment of the
terms hereof will not conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse of time) a
default
-23-
29
under, the articles of incorporation or by-laws of such Seller, or any
indenture, loan agreement, mortgage, deed of trust, or other material agreement
or instrument to which such Seller is a party or by which it is bound, or
result in the creation or imposition of any Adverse Claim upon any of its
properties pursuant to the terms of any such indenture, loan agreement,
mortgage, deed of trust, or other agreement or instrument, other than this
Agreement, or violate any law or any order, rule, or regulation applicable to
such Seller of any court or of any federal or state regulatory body,
administrative agency, or other governmental instrumentality having
jurisdiction over such Seller or any of its properties.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to such Sellers' knowledge, threatened, before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality (A) asserting the invalidity of this Agreement or any other
Agreement Document, (B) seeking to prevent the issuance of the Certificate or
the consummation of any of the transactions contemplated by this or any other
Agreement Document, (C) seeking any determination or ruling that might
materially and adversely affect (i) the performance by such Seller or Servicer
of its obligations under this Agreement, or (ii) the validity or enforceability
of this Agreement, the Certificate, any other Agreement Document, the
Receivables or the Contracts or (D) seeking to adversely affect the federal
income tax attributes of the Certificate.
(g) Bulk Sales Act. No transaction contemplated hereby requires
compliance with any bulk sales act or similar law.
(h) Government Approvals. 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
such Seller of this Agreement, the Certificate or any other Agreement Document
except for the filing of the UCC Financing Statements referred to in Article V,
all of which, at the time required in Article V, shall have been duly made and
shall be in full force and effect.
(i) Financial Condition. (x) The consolidated balance sheets of API
and its consolidated subsidiaries as at August 31, 1994, and the related
statements of income, shareholders' equity and cash flows of API and its
consolidated subsidiaries for the fiscal year then ended certified by Deloitte
Touche, independent accountants, and the consolidated balance sheets of API and
its consolidated subsidiaries as at May 31, 1995, and the related statements of
income, shareholders' equity and cash flows of API and its consolidated
subsidiaries for the nine month period then ended, copies of which have been
furnished to the Agent and each
-24-
30
Purchaser, fairly present the consolidated financial position of API and its
consolidated subsidiaries as at such date and the consolidated results of the
operations of API and its consolidated subsidiaries for the period ended on
such date, all in accordance with GAAP consistently applied, and (y) since
August 31, 1994 there has been no material adverse change in the financial
condition, business, business prospects or operations of any Seller or of API
and its consolidated subsidiaries, taken as a whole, except as described in
Exhibit 6.01(i).
(j) Litigation. No injunction, decree or other decision has been
issued or made by any court, government or agency or instrumentality thereof
that prevents, and, to such Seller's knowledge, no threat by any Person has
been made to attempt to obtain any such decision that would prevent, such
Seller from conducting a significant part of its business operations except as
described in Exhibit 6.01(j).
(k) Margin Regulations. The use of all funds acquired by Sellers
under this Agreement will not conflict with or contravene any of Regulations G,
T, U and X promulgated by the Board of Governors of the Federal Reserve System
from time to time.
(l) Quality of Title. Each Pool Receivable related to such Seller,
together with the related Contract and all purchase orders and other agreements
related to such Pool Receivable, is owned by such Seller, free and clear of any
Adverse Claim (other than any Adverse Claim arising solely as the result of any
action taken by a Purchaser or by the Agent) except as provided herein and when
the Agent, on behalf of the Purchasers, makes a Purchase it shall have acquired
and shall continue to have maintained a valid and, in the case of Pool
Receivables denominated in U.S. Dollars, perfected first priority undivided
percentage ownership interest to the extent of the Undivided Interest in each
Pool Receivable, and in 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 a Purchaser or by the
Agent) except as provided hereunder; and no effective financing statement or
other instrument similar in effect covering any Pool 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 such Seller in
accordance with the Contracts, in favor of the Agent, for the benefit of the
Purchasers in accordance with this Agreement or in connection with any Adverse
Claim arising solely as the result of any action taken by a Purchaser or by the
Agent.
(m) Accurate Reports. No Periodic Report (if prepared by such
Seller, or to the extent that information contained therein was supplied by
such Seller), information, exhibit, financial
-25-
31
statement, document, book, record or report furnished or to be furnished by any
Seller to the Agent or any Purchaser in connection with this Agreement was or
will be inaccurate in any material respect as of the date it was or will be
dated or (except as otherwise disclosed to the Agent or such Purchaser, as the
case may be, at such time) as of the date so furnished, or contained or will
contain any material misstatement of fact or omitted or will omit to state a
material fact or any fact necessary to make the statements contained therein
not materially misleading.
(n) Offices. The chief place of business and chief executive office
of such Seller are located at the address of such Seller referred to in Section
13.02 and the offices where such Seller keeps all its books, records and
documents evidencing Pool Receivables, the related Contracts and all purchase
orders and other agreements related to such Pool Receivables are located at the
addresses specified in Exhibit 6.01(n) (or at such other locations, notified to
the Agent in accordance with Section 7.01(f), in jurisdictions where all action
required by Section 8.05 has been taken and completed).
(o) Lock-Box Accounts. The names and addresses of all the Lock-Box
Banks, together with the account numbers of the lock-box accounts of such
Seller at such Lock-Box Banks, are specified in Exhibit 6.01(o) (or at such
other Lock-Box Banks and/or with such other lock-box accounts as have been
notified to the Agent in accordance with Section 7.03(d)).
(p) Eligible Receivables. Each Receivable included in the Net Pool
Balance as an Eligible Receivable on the date of any Purchase or Reinvestment
shall in fact be an Eligible Receivable.
ARTICLE VII
GENERAL COVENANTS OF SELLERS
SECTION 7.01. Affirmative Covenants of Sellers. From the date hereof
until the first day following the Commitment Termination Date on which all
Undivided Interests shall be reduced to zero, each Seller will, unless the
Agent shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material respects with
all applicable laws, rules, regulations and orders, including those with
respect to the Pool Receivables and related Contracts, except where the failure
to so comply would not materially adversely affect (i) the interests of the
Agent or any Purchaser hereunder, (ii) the ability of such Seller or Servicer
-26-
32
to perform their respective obligations hereunder or (iii) the validity or
enforceability of any Pool Receivable.
(b) Preservation of Corporate Existence. Except as permitted by
Section 7.03(e), preserve and maintain its corporate existence, rights,
franchises and privileges in the jurisdiction of its incorporation, and qualify
and remain qualified in good standing as a foreign corporation in each
jurisdiction where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualification would materially adversely affect (i)
the interests of the Agent or any Purchaser hereunder, (ii) the ability of such
Seller or Servicer to perform their respective obligations hereunder or (iii)
the validity or enforceability of any Pool Receivable.
(c) Audits. At any time and from time to time during regular
business hours, permit the Agent and each Purchaser, or its agents or
representatives, (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 such Seller relating to Pool
Receivables, including, without limitation, the related Contracts and purchase
orders and other agreements, and (ii) to visit the offices and properties of
such Seller for the purpose of examining such materials described in clause (i)
next above, and to discuss matters relating to Pool Receivables or such
Seller's performance hereunder with any of the officers or employees of Seller
having knowledge of such matters.
(d) Keeping of Records and Books of Account. Maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing Pool Receivables 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 Pool Receivables (including, without limitation, records
adequate to permit the daily identification of each new Pool Receivable and all
Collections of and adjustments to each existing Pool Receivable).
(e) Performance and Compliance with Receivables and Contracts. 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 Pool Receivables and all purchase orders and other agreements
related to such Pool Receivables.
(f) Location of Records. Keep its chief place of business and chief
executive office, and the offices where it keeps its records concerning the
Pool Receivables denominated in U.S. Dollars, all related Contracts and all
purchase orders and other
-27-
33
agreements related to such Pool Receivables (and all original documents
relating thereto), at the address(es) of such Seller referred to in Section
6.01(n) or, in the case of a domestic Seller, upon 30 days' prior written
notice to the Agent, at such other locations in jurisdictions where all action
required by Section 8.05 shall have been taken and completed.
(g) Credit and Collection Policies. Comply in all material respects
with its Credit and Collection Policy in regard to each Pool Receivable and the
related Contracts.
(h) Collections. Instruct all Obligors of Pool Receivables that are
denominated in U.S. Dollars that are located in the United States to cause all
Collections of Pool Receivables to be deposited directly with a Lock-Box Bank.
SECTION 7.02. Reporting Requirements of Sellers. From the date
hereof until the first day following the Commitment Termination Date on which
all Undivided Interests shall be reduced to zero, API will, unless the Agent
shall otherwise consent in writing, furnish, or cause to be furnished, to the
Agent and each Purchaser:
(a) Quarterly Financial Statements. Promptly when available and in
any event within 60 days after the end of each Fiscal Quarter (except the last
Fiscal Quarter of each Fiscal Year), consolidated balance sheets of API and its
Subsidiaries as of the end of such Fiscal Quarter, consolidated statements of
earnings and a consolidated statement of cash flow for such Fiscal Quarter and
for the period beginning with the first day of such Fiscal Year and ending on
the last day of such Fiscal Quarter of API and its respective Subsidiaries,
with comparable information at the close of and for the corresponding Fiscal
Quarter of the prior Fiscal Year and for the corresponding portion of such
prior Fiscal Year, together with a certificate of an Authorized Financial
Officer of API to the effect that such financial statements fairly present the
financial condition and results of operations of API and its Subsidiaries as of
the date and periods indicated (subject to normal year-end adjustments);
(b) Annual Financial Statements. Promptly when available and in any
event within 90 days after the close of each Fiscal Year, a copy of the annual
audit report of API and its Subsidiaries for such Fiscal Year, including
therein consolidated balance sheets of API and its Subsidiaries as of the end
of such Fiscal Year and consolidated statements of earnings and cash flow of
API and its Subsidiaries for such Fiscal Year certified, without qualification
as to going concern or scope, by independent auditors of recognized national
standing selected by API and reasonably acceptable to the Agent, and an
unaudited consolidating balance sheet and statements of earnings and
-28-
34
cashflow of such Fiscal Year, with comparable information at the close of and
for the prior Fiscal Year;
(c) Compliance Certificate. Concurrently with each set of financial
statements delivered pursuant to subsections (a) and (b) next above, a
certificate of an Authorized Financial Officer of API (a) to the effect that
such officer is not aware of any Termination Event or Unmatured Termination
Event that has occurred and is continuing or, if there is any such event,
describing it in reasonable detail, and (b) containing a computation of each of
(x) the financial ratios and restrictions set forth in Section 7.03;
(d) Reports to Holders and Exchanges. In addition to the reports
required by subsections (a) and (b) next above, promptly upon the Agent's or
any Purchaser's request, copies of any reports specified therein which API
sends to any of its security holders, and any reports or registration
statements that API files with the Securities and Exchange Commission or any
national securities exchange other than registration statements relating to
employee benefit plans, to stock plans for dealers and/or distributors and to
registrations of securities for selling Security holders;
(e) ERISA. Promptly after the filing or receiving thereof, copies of
all reports and notices with respect to any Reportable Event defined in Article
IV of ERISA which any Seller files under ERISA with the Internal Revenue
Service or the Pension Benefit Guaranty Corporation or the U.S. Department of
Labor or which any Seller receives from such Corporation;
(f) Termination Events. As soon as possible and in any event within
five Business Days after any Seller has become aware of the occurrence of each
Termination Event and each Unmatured Termination Event, a written statement of
the chief financial officer or chief accounting officer of API setting forth
details of such Termination Event or Unmatured Termination Event and the action
that the related Seller proposes to take with respect thereto;
(g) Litigation. As soon as possible and in any event within fifteen
Business Days of any Seller's knowledge thereof, notice of (i) any litigation,
investigation or proceeding which may exist at any time which could have a
material adverse effect on the business, operations, property or financial
condition of any Seller or impair the ability of any Seller to perform its
obligations under this Agreement, unless such Seller is insured (including self
retention amounts consistent with past practice and the exercise of prudent
business judgment) with respect thereto and the insurer, except to the extent
covered by permitted self insurance, has assumed responsibility therefor in
-29-
35
writing and (ii) any material adverse development in previously disclosed
litigation; and
(h) Other. Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables or the conditions or
operations, financial or otherwise, of any Seller as the Agent or any Purchaser
may from time to time reasonably request in order to protect the interests of
the Agent or of any Purchaser under or as contemplated by this Agreement.
SECTION 7.03. Negative Covenants of Sellers. From the date hereof
until the date following the Commitment Termination Date on which all Undivided
Interests shall be reduced to zero, no Seller will, without the prior written
consent of the Agent:
(a) Sales, Liens, Etc. Except as otherwise provided herein, sell,
assign (by operation of law or otherwise) or otherwise dispose of, or create or
suffer to exist any Adverse Claim upon or with respect to, any Seller's
undivided interest in any Pool Receivable or related Contract or Related
Security, or upon or with respect to any lock-box account to which any
Collections of any Pool Receivable are sent, or assign any right to receive
income in respect thereof.
(b) Extension or Amendment of Receivables. Except as otherwise
permitted in Section 8.02, extend, amend or otherwise modify the terms of any
Pool Receivable, or amend, modify or waive any term or condition of any
Contract related thereto.
(c) Change in Business or Credit and Collection Policy. Make any
change in the character of its business or in the Credit and Collection Policy,
which change would, in either case, impair the collectability of any Pool
Receivable.
(d) Change in Payment Instructions to Obligors. If such Seller is a
domestic Seller, add or terminate any bank as a Lock-Box Bank from those listed
in Exhibit 6.01(o) or make any change in its instructions to Obligors regarding
payments to be made to any Seller or payments to be made to any Lock-Box Bank,
unless the Agent shall have received notice of such addition, termination or
change and duly executed copies of a Lock-Box Agreement with each new Lock-Box
Bank.
(e) Mergers, Acquisitions, Sales, etc. Be a party to any merger or
consolidation, or purchase or otherwise acquire all or a substantial portion of
the business of, or assets or any stock of any class of, or any partnership or
joint venture interest in, any other Person, or, except in the ordinary course
of its business, sell, transfer, convey or lease all or any substantial part of
its assets, or sell or assign with or without recourse
-30-
36
any Receivables (other than pursuant hereto), or permit any Subsidiary to do
any of the foregoing, except for:
(i) any such merger or consolidation, sale, transfer,
conveyance, lease or assignment of or by any Subsidiary into, with or
to API or into, with or to any wholly-owned Subsidiary;
(ii) any such purchase or other acquisition by API of the
assets or stock of any wholly-owned Subsidiary;
(iii) any sale, transfer, conveyance or lease of any asset
(other than Receivables, except pursuant hereto) provided that if (x)
the aggregate book value (disregarding any write-downs of such book
value other than ordinary depreciation and amortization) of all assets
disposed of pursuant to this clause (iii) in any Fiscal Year are less
than 15% of the total book value of tangible assets of API and its
Subsidiaries as of the last day of the most recently ended Fiscal Year
and (y) no Termination Event or Unmatured Termination Event exists or
would result therefrom;
(iv) any acquisition if (1) (A) such acquisition is an
acquisition of assets, or (B) such acquisition is by merger and API or
a wholly-owned Subsidiary is the surviving corporation, or (C) after
such acquisition API (if it is the acquiring entity) or a Subsidiary
owns (x) at least a majority of the securities of each class having
ordinary voting power of, or a majority of the ownership interest in,
the acquired Person or (y) more than 10% but less than a majority of
the securities of each class having ordinary voting power of, or more
than 10% but less than a majority of the ownership interest in, the
acquired Person and, immediately after giving effect to any
acquisition described in this subclause (y), the aggregate book value
of all such minority Investments in the equity securities or other
ownership interests of other Persons by API and its Subsidiaries does
not exceed 20% of the consolidated tangible assets of API and its
Subsidiaries, (2) no Termination Event or Unmatured Termination Event
exists or would result therefrom and (3) prior to the consummation of
any such acquisition the purchase price of which is in excess of
$5,000,000, API provides to the Agent and each Purchaser a certificate
of the chief financial officer or treasurer of API (attaching
computations to demonstrate compliance with all financial covenants
hereunder) stating that such acquisition complies with this
Section 7.03(e) and that any other conditions under this Agreement
relating to such acquisition have been satisfied; or
-31-
37
(v) any sale of a Seller (other than API) if API has complied
with all of the requirements of Section 3.10.
(f) Financial Covenants. (i) Minimum Shareholders' Equity. (x)
Permit at any time Shareholders' Equity for API to be less than the sum of
$91,000,000 plus 25% of Consolidated Net Income for each Fiscal Quarter ending
on or after February 28, 1995 (excluding any Fiscal Quarter in which there is a
loss) or (y) Permit at any time Shareholders' Equity of Applied Power S.A. to
be less than $1.00.
(ii) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage
Ratio to be less than 1.5:1.
(iii) Debt to Capital Ratio. Permit at any time the Debt to Capital
Ratio to exceed 58%.
ARTICLE VIII
ADMINISTRATION AND COLLECTION
SECTION 8.01. Designation of Servicer. (a) The servicing,
administering and collection of the Pool Receivables shall be conducted by such
Person ("Servicer") so designated from time to time in accordance with this
Section 8.01. Until the Agent gives notice ("Successor Notice") to API of the
designation of a new Servicer, API is hereby designated as, and hereby agrees to
perform the duties and obligations of, Servicer pursuant to the terms hereof.
The Agent agrees not to provide API with the Successor Notice until after the
occurrence of any Termination Event ("Servicer Transfer Event"), in which case
such Successor Notice may be given at any time in Agent's discretion.
(b) Upon API's receipt of a Successor Notice, API agrees that it will
terminate its activities as Servicer hereunder in a manner which the Agent
believes will facilitate the transition of the performance of such activities
to the new Servicer, and the Agent (or its designee) shall assume each and all
of API's obligations to service and administer such Receivables, on the terms
and subject to the conditions herein set forth and API shall use its best
efforts to assist the Agent (or its designee) in assuming such obligations. If
API disputes the occurrence of a Servicer Transfer Event, API may take
appropriate action to resolve such dispute; provided that API must terminate
its activities hereunder as Servicer and allow the newly designated Servicer to
perform such activities on the date provided by the Agent as described above,
notwithstanding the commencement or continuation of any proceeding to resolve
the aforementioned dispute.
-32-
38
(c) Servicer may allow any Seller to service, administer and collect
any Receivables generated by such Seller and may with the prior consent of the
Agent, subcontract with any other person for servicing, administering or
collecting the Pool Receivables, provided that, in each case, Servicer shall
remain liable for the performance of the duties and obligations of Servicer
pursuant to the terms hereof.
SECTION 8.02. Duties of Servicer. (a) Servicer shall take or cause
to be taken all such actions as may be necessary or advisable to collect each
Pool Receivable from time to time, all in accordance with applicable laws,
rules and regulations, with reasonable care and diligence, and in accordance
with the Credit and Collection Policy. Each of the Agent, each Purchaser and
each Seller hereby appoints as its agent Servicer, from time to time designated
pursuant to Section 8.01, to enforce its respective rights and interests in and
under the Pool Receivables, the Related Security and the Contracts. Servicer
shall set aside for the account of Sellers and each Purchaser their respective
allocable shares of the Collections of Pool Receivables in accordance with
Sections 3.01 and 3.02 but shall not be required (unless otherwise requested by
the Agent and subject to Section 3.08) to segregate the funds constituting such
portions of such Collections, or to segregate the respective allocable shares
of each Purchaser, prior to the remittance thereof in accordance with said
Sections. If instructed by the Agent, Servicer shall segregate and deposit
with a bank (which may be PNC Bank) designated by the Agent such allocable
shares of Collections of Pool Receivables, set aside for Purchasers, on the
first Business Day following receipt by Servicer of such Collections in
immediately available funds. So long as no Termination Event or Purchase
Termination Event shall have occurred and be continuing, each Seller, while API
is Servicer, may, in accordance with the Credit and Collection Policy, (i)
extend the maturity or adjust the Unpaid Balance of any Defaulted Receivable as
it may reasonably determine to be appropriate to maximize Collections thereof,
provided that, after giving effect to such extension of maturity the Aggregate
Participation Amounts will not exceed the Participation Amounts Limit, and (ii)
adjust the Unpaid Balance of any Receivable to reflect the reductions or
cancellations described in the first sentence of Section 3.03(a). Each Seller
shall hold in trust for each Purchaser all documents, instruments and records
(including, without limitation, computer tapes or disks) that evidence or
relate to Pool Receivables generated by such Seller.
(b) Servicer shall as soon as practicable following receipt turn over
to Sellers (i) that portion of Collections of Pool Receivables not representing
Purchasers' Undivided Interest therein, less, in the event API is no longer
Servicer, all reasonable and appropriate out-of- pocket costs and expenses of
-33-
39
such Servicer of servicing, collecting and administering the Pool Receivables
to the extent not covered by the Servicer's Fee received by it and (ii) the
Collections of any Receivable which is not a Pool Receivable. Servicer, if
other than API, shall as soon as practicable upon demand deliver to API all
documents, instruments and records in its possession that evidence or relate to
Receivables of any Seller other than Pool Receivables, and copies of documents,
instruments and records in its possession that evidence or relate to Pool
Receivables. Servicer's authorization under this Agreement shall terminate
after the Commitment Termination Date, upon receipt by each Purchaser of an
amount equal to such Purchaser's Total Investment plus accrued Earned Discount
thereon plus all other amounts owed to Purchaser and Sellers and (unless
otherwise agreed to by the Agent and Servicer) Servicer under this Agreement.
SECTION 8.03. Rights of the Agent. (a) At any time following the
occurrence of a Termination Event, the Agent is hereby authorized to give
notice to the Lock-Box Banks of the transfer to the Agent of dominion and
control over the lock-box accounts to which the Obligors of Pool Receivables
shall make payments, as set forth in the Lock-Box Agreement. Each Seller
hereby transfers to the Agent, effective when the Agent shall give such notice
to the Lock-Box Banks, the exclusive dominion and control over such lock-box
accounts, and shall take any further action that the Agent may reasonably
request to effect such transfer. Further, at any time the Agent may notify the
Obligors of Pool Receivables, or any of them, of the ownership of Undivided
Interests by the Agent, on behalf of the Purchasers.
(b) At any time after the occurrence of a Termination Event:
(i) The Agent may direct the Obligors of Pool Receivables
that are denominated in U.S. Dollars, or any of them, that payment of
all amounts payable under any Pool Receivable be made directly to the
Agent or its designee.
(ii) API shall, at the Agent's request and at API's expense,
give notice of the ownership of the Pool Receivables that are
denominated in U.S. Dollars by the Agent, on behalf of the Purchasers,
to each said Obligor and direct that payments be made directly to the
Agent or its designee.
(iii) Each Seller shall, at the Agent's request, (A) assemble
all of the documents, instruments and other records (including,
without limitation, computer programs, tapes and disks) which evidence
the Pool Receivables that are denominated in U.S. Dollars, and the
related Contracts and Related Security, or which are otherwise
necessary or
-34-
40
desirable to collect such Pool Receivables, and shall make the same
available to the Agent at a place selected by the Agent or its
designee, and (B) segregate all cash, checks and other instruments
received by it from time to time constituting Collections of Pool
Receivables that are denominated in U.S. Dollars in a manner
acceptable to the Agent and shall, promptly upon receipt, remit all
such cash, checks and instruments, duly endorsed or with duly executed
instruments of transfer, to the Agent or its designee.
(iv) Each of each Purchaser and each Seller hereby authorizes
the Agent to take any and all steps in any Seller's name and on behalf
of any Seller and any Purchaser necessary or desirable, in the
determination of the Agent, to collect all amounts due under any and
all Pool Receivables, including, without limitation, endorsing any
Seller's name on checks and other instruments representing Collections
and enforcing such Pool Receivables and the related Contracts.
SECTION 8.04. Responsibilities of each Seller. Anything herein to
the contrary notwithstanding:
(a) Each Seller shall perform all of its obligations under the
Contracts related to the Pool Receivables generated by it and under the related
purchase orders and other agreements to the same extent as if Undivided
Interests had not been sold hereunder and the exercise by the Agent of its
rights hereunder shall not relieve any Seller from such obligations.
(b) Neither the Agent nor any Purchaser shall have any obligation or
liability with respect to any Pool Receivables, Contracts related thereto or
any other related purchase orders or other agreements, nor shall any of them be
obligated to perform any of the obligations of any Seller thereunder.
(c) Each 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 such 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 such Seller or transmitted or received by any Purchaser (whether
or not from such Seller) in connection with any Receivable.
SECTION 8.05. Further Action Evidencing Purchases. Each Seller
agrees that from time to time, at its expense, it will promptly execute and
deliver all further instruments and documents, and take all further action that
the Agent may reasonably request in order to perfect, protect or more fully
evidence the Undivided Interests purchased by Purchasers hereunder, or to
enable any Purchaser or the Agent to exercise or
-35-
41
enforce any of their respective rights hereunder or under the Certificate.
Without limiting the generality of the foregoing, each domestic Seller will
upon the request of the Agent: (i) execute and file such financing or
continuation statements, or amendments thereto or assignments thereof, and such
other instruments or notices, as may be necessary or appropriate; (ii) xxxx
conspicuously each Contract evidencing each Pool Receivable generated by it
with a legend, acceptable to the Agent, evidencing that such Undivided
Interests have been sold in accordance with this Agreement; and (iii) xxxx its
master data processing records evidencing any Pool Receivables and related
Contracts with such legend. Each domestic Seller hereby authorizes the Agent
to file one or more financing or continuation statements, and amendments
thereto and assignments thereof, relative to all or any of the Pool Receivables
and the Related Security now existing or hereafter arising in the name of such
Seller. If any Seller fails to perform any of its agreements or obligations
under this Agreement, the Agent may (but shall not be required to) itself
perform, or cause performance of, such Agreement or obligation, and the
expenses of the Agent incurred in connection therewith shall be payable by
Sellers, jointly and severally, as provided in Section 12.01.
SECTION 8.06. Application of Collections. Any payment by an Obligor
in respect of any indebtedness owed by it to a Seller shall, except as
otherwise specified by such Obligor or otherwise required by contract or law
and unless otherwise instructed by the Agent, be applied as a Collection of any
Pool Receivable or Receivables of such Obligor to the extent of any amounts
then due and payable thereunder before being applied to any other indebtedness
of such Obligor.
ARTICLE IX
TERMINATION EVENTS
SECTION 9.01. Termination Events. Each of the following events shall
be a "Termination Event" hereunder:
(a) (i) Servicer (if API) shall fail to perform or observe any term,
covenant or agreement hereunder in its capacity as Servicer (other than as
referred to in clause (ii) next following) and such failure shall remain
unremedied for three Business Days or (ii) either Servicer (if API) or any
Seller shall fail to make any payment or deposit to be made by it hereunder
when due; or
(b) Any representation or warranty made or deemed to be made by any
Seller or Servicer (or any of their respective officers) under or in connection
with this Agreement or any
-36-
42
Periodic Report or Settlement Statement or other information or report
delivered pursuant hereto shall prove to have been false or incorrect in any
material respect when made; or
(c) Any Seller shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be performed
or observed and any such failure shall remain unremedied for ten Business Days
after written notice thereof shall have been given by the Agent to Sellers'
Representative; or
(d) A default shall have occurred and be continuing under or any
instrument, contract, indenture or agreement evidencing, securing or providing
for the issuance of indebtedness for borrowed money in excess of $2,000,000 of,
or guaranteed by, any Seller or any Affiliate of any thereof, which default if
unremedied, uncured, or unwaived (with or without the passage of time or the
giving of notice) would permit acceleration of the maturity of such
indebtedness and such default shall have continued unremedied, uncured or
unwaived for a period long enough to permit such acceleration and any notice of
default required to permit acceleration shall have been given; or
(e) The average of the Delinquency Ratios for any three successive
Month End Dates exceeds 15%; or
(f) An Event of Bankruptcy shall have occurred and remained
continuing with respect to any Seller or any Affiliate of any thereof; or
(g) (i) Any litigation (including, without limitation, derivative
actions), arbitration proceedings or governmental proceedings not disclosed in
writing by Sellers' Representative to the Agent and Purchasers prior to the
date of execution and delivery of this Agreement is pending against any Seller
or (ii) any material development not so disclosed has occurred in any
litigation (including, without limitation, derivative actions), arbitration
proceedings or governmental proceedings so disclosed, which, in the case of
clause (i) or (ii), in the reasonable opinion of the Agent is likely to
materially adversely affect the financial position or business of any Seller or
impair the ability of any Seller to perform its obligations under this
Agreement; or
(h) Aggregate Participation Amounts shall exceed the Participation
Amounts Limit, or that portion of the Aggregate Purchasers' Investments that is
funded in Approved Currencies other than U.S. Dollars exceeds the Foreign
Currency Limit, or the aggregate Unpaid Balance of Receivables denominated in
any Approved Currency is less than the sum of the Purchasers'
-37-
43
Investments of each Undivided Interest funded in such Approved Currency; or
(i) The average of the Default Ratios for any three successive Month
End Dates exceeds 7.25%; or
(j) There shall have occurred any event which materially adversely
affects the collectability of the Pool Receivables or there shall have occurred
any other event which materially adversely affects the ability of any Seller or
Servicer to collect Pool Receivables or the ability of any Seller or Servicer
to perform hereunder or the warranty in Section 6.01(i)(y) shall not be true at
any time; or
(k) The Internal Revenue Service shall file notice of a lien pursuant
to Section 6323 of the Internal Revenue Code with regard to any of the assets
of any Seller and such lien shall not have been released and such lien shall
not have been released within 8 Business Days, or the Pension Benefit Guaranty
Corporation shall, or shall indicate its intention to, file notice of a lien
pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974
with regard to any of the assets of any Seller and such lien shall not have
been released within 8 Business Days; or
(l) One Person, or a group of Persons acting in concert that are
unacceptable to the Agent or the Majority Purchasers obtain, in one or more
transactions, control of more than 50% of the issued and outstanding shares of
capital stock of API having the power to elect a majority of directors of API;
or any Seller other than API ceases to be a wholly-owned Subsidiary of API; or
(m) The average of the Dilution Ratios for any three successive Month
End Dates exceeds 8%; or
(n) The average of the Net Charge-Off Ratios for any three
successive Month End Dates exceeds 2%.
SECTION 9.02. Remedies.
(a) Optional Termination. Upon the occurrence of a Termination Event
(other than a Termination Event described in subsection (f) or (h) of Section
9.01), the Agent shall, at the request, or may, with the consent, of the
Majority Purchasers, by notice to Sellers' Representative declare the
Commitment Termination Date to have occurred.
(b) Automatic Termination. Upon the occurrence of a Termination
Event described in subsection (f) or (h) of Section 9.01, the Commitment
Termination Date shall be deemed to have occurred automatically upon the
occurrence of such event;
-38-
44
provided however, that with respect to the occurrence of a Termination Event
described in subsection (h) of Section 9.01 the settlement procedures described
in Section 3.02 shall become applicable upon the occurrence of such event and
no further Purchases or Reinvestments of Collections shall be made; and
provided, further, that if the Aggregate Participation Amounts are reduced
below the Participation Amounts Limit within one Business Day, and if no other
Termination Event has occurred, then following such reduction, the Commitment
shall be reinstated as if the Commitment Termination Date had not occurred upon
the occurrence of such event.
(c) Additional Remedies. Upon any termination of the facility
pursuant to this Section 9.02, the Agent and each Purchaser shall have, in
addition to all other rights and remedies under this Agreement or otherwise,
all other rights and remedies provided under the UCC of each applicable
jurisdiction and other applicable laws, which rights shall be cumulative.
Without limiting the foregoing the occurrence of a Termination Event shall not
deny to any Purchaser any remedy in addition to termination of the Commitment
to which such Purchaser may be otherwise appropriately entitled, whether at law
or in equity.
ARTICLE X
THE AGENT
SECTION 10.01. Authorization and Action. Each Purchaser hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the Agent
by the terms hereof, together with such powers as are reasonably incidental
thereto.
SECTION 10.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or the Agent under or in connection with
this Agreement (including, without limitation, the Agent's servicing,
administering or collecting Pool Receivables as Servicer pursuant to Section
8.01), except for its or their own gross negligence or willful misconduct.
Without limiting the generality of the foregoing, the Agent: (i) may consult
with legal counsel (including counsel for Sellers), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to any Purchaser and shall not be responsible to any Purchaser
for any statements, warranties or representations made in or in connection with
this Agreement; (iii) shall not have any duty to ascertain or to inquire as to
-39-
45
the performance or observance of any of the terms, covenants or conditions of
this Agreement on the part of any Seller or to inspect the property (including
the books and records) of any Seller; (iv) shall not be responsible to any
Purchaser for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the Certificate or any
other instrument or document furnished pursuant hereto; and (v) shall incur no
liability under or in respect of this Agreement by acting upon any notice
(including notice by telephone), consent, certificate or other instrument or
writing (which may be by telex) believed by it to be genuine and signed or sent
by the proper party or parties.
SECTION 10.03. Agent and Affiliates. With respect to any Undivided
Interest held by PNC Bank, it shall have the same rights and powers under this
Agreement as would a Purchaser if it were holding such Undivided Interest and
may exercise the same as though it were not the Agent. PNC Bank and its
Affiliates may generally engage in any kind of business with any Seller or any
Obligor, any of their respective Affiliates and any Person who may do business
with or own securities of any Seller or any Obligor or any of their respective
Affiliates, all as if PNC Bank were not the Agent and without any duty to
account therefor to any Purchaser.
SECTION 10.04. Indemnity. Each Purchaser agrees (which agreement
shall survive any termination of this Agreement) to indemnify the Agent, on a
pro rata basis, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may at any time be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement, the Certificate and the other Agreement Documents, including the
reimbursement of the Agent for all reasonable out-of-pocket expenses (including
attorneys' fees) incurred by the Agent hereunder or in connection herewith or
in enforcing the obligations of any Seller under this Agreement, the
Certificates and the other Agreement Documents, in all cases as to which the
Agent is not reimbursed by the Sellers; provided that no Purchaser shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
determined by a court of competent jurisdiction in a final proceeding to have
resulted from the Agent's gross negligence or willful misconduct. The Agent
shall not be required to take any action hereunder, under the Certificate or
under any other Agreement Document, or to prosecute or defend any suit in
respect of this Agreement, the Certificate or any other Agreement Document,
unless indemnified to its satisfaction by the Purchasers against loss, costs,
liability, and expense, which indemnity need not indemnify the Agent for its
gross negligence
-40-
46
or willful misconduct. If any indemnity in favor of the Agent shall become
impaired, it may call for additional indemnity and cease to do the acts
indemnified against until such additional indemnity is given. The Agent may
delegate its duties hereunder to Affiliates, agents or attorneys-in-fact
selected in good faith by the Agent.
SECTION 10.05. Successor. The Agent may resign as such at any time
upon at least thirty days' prior notice to the Sellers' Representative and all
Purchasers. If the Agent at any time shall resign, the Majority Purchasers may
appoint a successor Agent; provided that, if such successor Agent is not a
Purchaser, such successor Agent shall be reasonably acceptable to the Sellers'
Representative. If the Majority Purchasers do not make such appointment within
thirty days, the retiring Agent shall appoint a new Agent from among the
Purchasers or, if no Purchaser accepts such appointment, from among commercial
banking institutions or trust institutions generally. Upon the acceptance of
any appointment as Agent by a successor Agent, such successor Agent shall
thereupon become the Agent hereunder and shall be entitled to receive from the
prior Agent such documents of transfer and assignment as such successor Agent
may reasonably request, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement, the Certificates and the other
Agreement Documents. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Agreement and the other Agreement
Documents shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
SECTION 10.06. Credit Decisions. Each Purchaser acknowledges that it
has, independently of the Agent and each other Purchaser, and based on the
financial information referred to in Section 6.01(i) and such other documents,
information, and investigations as it has deemed appropriate, made its own
credit decision to make its Purchases from time to time. Each Purchaser also
acknowledges that it will, independently of the Agent and each other Purchaser,
and based on such other documents, information, and investigations as it shall
deem appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under this Agreement, the Certificates or the other Agreement
Documents.
SECTION 10.07. Notices, etc. to Agent. The Agent shall give prompt
notice to each Purchaser of each notice or request given to the Agent by any
Seller pursuant to the terms of this Agreement and of each Termination Event or
Unmatured Termination Event of which the Agent has actual knowledge. The Agent
will promptly distribute to each Purchaser copies of all other communications
and financial statements received by the Agent
-41-
47
from any Seller for distribution to the Purchasers by the Agent in accordance
with the terms of this Agreement. The Agent shall not be deemed to have actual
knowledge of any event unless an authorized corporate officer of the Agent
whose duties include administration of this Agreement has discovered or has
received actual notice of such event.
ARTICLE XI
ASSIGNMENT OF UNDIVIDED INTERESTS
SECTION 11.01. Assignments. Any Purchaser may assign its Commitment
and any Undivided Interest owned by it to any other Person proposed by
Purchaser and consented to by the Agent and the Sellers' Representative, which
consent shall not be unreasonably withheld, provided that such assignment (i)
shall be in an amount at least equal to $5,000,000 and (ii) shall not result in
more than six (6) Purchasers. Within five Business Days after notice of such
proposed assignment, Sellers' Representative agrees to advise the Agent of its
consent or non-consent thereto. All of the aforementioned assignments shall be
upon such terms and conditions as the relevant Purchaser and the assignee may
mutually agree. Each assigning Purchaser shall pay the Agent a fee of $3,500
in connection with each such assignment, which fee shall be payable on the
effective date of such assignment.
SECTION 11.02. Documentation. Each assignment by a Purchaser
hereunder shall be evidenced by an Assignment.
SECTION 11.03. Rights of Assignee. Upon the assignment of any
Commitment and Undivided Interest (or portion thereof) from any Purchaser
pursuant to this Article XI, the respective assignee receiving such assignment
shall have all of the rights of a Purchaser hereunder with respect to such
Undivided Interest (or portion thereof).
SECTION 11.04. Assignment by Sellers. No Seller shall assign its
rights or obligations under this Agreement and the other Agreement Documents
without the prior written consent of the Agent and each Purchaser.
ARTICLE XII
INDEMNIFICATION
SECTION 12.01. Indemnities by Sellers. Without limiting any other
rights which any such Person may have hereunder or under applicable law,
Sellers, jointly and severally, hereby
-42-
48
agree to indemnify each of the Agent, each Purchaser, PNC Bank, each of PNC
Bank's Affiliates, their respective successors, transferees and assigns and all
officers, directors, shareholders, controlling persons, employees and agents of
any of the foregoing (each an "Indemnified Party"), forthwith on demand, from
and against any and all damages, losses, claims, 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 of them arising out of or as a result of this
Agreement or any of the other Agreement Documents or the transactions
contemplated thereby or the use of the proceeds by the Sellers therefrom,
including, without limitation, in respect of the ownership or funding of an
Undivided Interest or in respect of any Receivable or any Contract, excluding,
however, recourse (except as otherwise specifically provided in this Agreement)
for Defaulted Receivables. Without limiting the foregoing, Sellers, jointly
and severally, shall indemnify each Indemnified Party for Indemnified Amounts
relating to or resulting from:
(i) the transfer by any Seller of any interest in any
Receivable other than an Undivided Interest;
(ii) the breach of any representation or warranty made by any
Seller (or any of its officers) under or in connection with this
Agreement, any Periodic Report or any other information or report
delivered by any Seller pursuant hereto, which shall have been false
or incorrect in any material respect when made or deemed made;
(iii) the failure by any Seller to comply with any applicable
law, rule or regulation with respect to any Pool Receivable or the
related Contract, or the nonconformity of any Pool Receivable or the
related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in each
Purchaser an undivided percentage ownership interest, to the extent of
each Undivided Interest owned by it hereunder, in the Receivables in,
or purporting to be in, the Receivables Pool, free and clear of any
Adverse Claim, other than an Adverse Claim arising solely as a result
of an act of such Purchaser or the Agent (when used in this clause
(iv), an Adverse Claim shall include any lien for taxes whether
accrued and payable or not), whether existing at the time of the
Purchase of such Undivided Interest or at any time thereafter;
(v) the failure to file, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of
any applicable jurisdiction or
-43-
49
other applicable laws with respect to any receivables in, or
purporting to be in, the Receivables Pool, whether at the time of any
Purchase, Reinvestment or at any subsequent time, or the failure of
the Purchasers' interests in Pool Receivables to be perfected as a
result of the failure to comply with the Federal Assignment of Claims
Act, the laws of any foreign jurisdiction or otherwise;
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of the Obligor to the payment of any
Receivable in, or purporting to be in, the Receivables Pool
(including, without limitation, a defense based on such Receivable's
or the related Contract's not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with
its terms), or any other claim resulting from the sale of the
merchandise or services related to such Receivable or the furnishing
or failure to furnish such merchandise or services;
(vii) any failure of API, as Servicer or otherwise, to
perform its duties or obligations in accordance with the provisions of
Article VIII;
(viii) any products liability claim arising out of or in
connection with merchandise or services that are the subject of any
Pool Receivable; or
(ix) any tax or governmental fee or charge (but not including
taxes upon or measured by net income), including withholding taxes,
all interest and penalties thereon or with respect thereto, and all
out-of-pocket costs and expenses, including the reasonable fees and
expenses of counsel in defending against the same, which may arise by
reason of the purchase or ownership of any Undivided Interest, or
other interest in the Pool Receivables or in any goods which secure
any such Pool Receivables. If any Indemnified Party shall have notice
of any attempt to impose or collect any tax or governmental fee or
charge for which indemnification will be sought from Sellers
hereunder, such Indemnified Party shall give prompt and timely notice
of such attempt to Sellers' Representative and Sellers' Representative
shall have the right, at its expense, to conduct or participate in any
proceedings resisting or objecting to the imposition or collection of
any such tax, governmental fee or charge. Indemnification hereunder
shall be in an amount necessary to make the Indemnified Party whole
after taking into account any tax consequences to the Indemnified
Party of the payment of any of the aforesaid taxes and the receipt of
the indemnity provided hereunder or of any refund of any such tax
previously indemnified hereunder, including the effect of such tax or
refund on the
-44-
50
amount of tax measured by net income or profits which is or was
payable by the Indemnified Party.
Notwithstanding anything to the contrary herein, an Indemnified Party shall
refund to the Sellers any amount received from the Sellers for losses, damages,
costs and expenses incurred by such Indemnified Party which a court of
competent jurisdiction has found, in a final nonappealable order, resulted from
such Indemnified Party's bad faith, gross negligence or willful misconduct
(individually and not as a co-conspirator with a Seller or any Affiliate
thereof). No Seller shall be liable for any settlement of any claim or action
effected without its written consent at a time when no Termination Event had
occurred and was continuing, provided such consent was not unreasonably delayed
or withheld. If for any reason the indemnification provided above in this
Section 12.01 is unavailable to an Indemnified Party or is insufficient to hold
an Indemnified Party harmless to the extent contemplated by such
indemnification, then Sellers, jointly and severally, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by such Indemnified Party on the one hand
and Sellers on the other hand but also the relative fault of such Indemnified
Party as well as any other relevant equitable considerations.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure by any Seller
therefrom shall in any event be effective unless the same shall be in writing
and signed by (i) Sellers, the Agent and the Majority Purchasers (with respect
to an amendment) or (ii) the Agent and the Majority Purchasers (with respect to
a waiver or consent by them) or Sellers (with respect to a waiver or consent by
them), as the case may be, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given,
provided, that, without the consent of each Purchaser, no such amendment or
waiver shall (i) reduce the amount of, or change the date of payment of, any
Earned Discount, any fee or such Purchaser's Outstanding Investment, (ii)
extend the Commitment Termination Date, (iii) change the definition of Majority
Purchasers or this proviso or (iv) release any interest in Pool Receivables,
except as expressly set forth herein. This Agreement, together with the other
Agreement Documents, contains a final and complete integration of all prior
expressions by the parties hereto with respect to the subject matter hereof and
shall constitute the
-45-
51
entire agreement among the parties hereto with respect to the subject matter
hereof, superseding all prior oral or written understandings.
SECTION 13.02. Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including facsimile communication) and shall be personally delivered or sent
by certified mail, postage prepaid, or by facsimile, to the intended party at
the address or facsimile number of such party set forth under its name on the
signature pages hereof or at such other address or facsimile number as shall be
designated by such party in a written notice to the other parties hereto. All
such notices and communications shall be effective, (i) if personally
delivered, when received, (ii) if sent by certified mail, three Business Days
after having been deposited in the mail, postage prepaid, (iii) if sent by
overnight delivery service, the next Business Day, and (iv) if transmitted by
facsimile, when sent, receipt confirmed by telephone or electronic means,
except that notices and communications pursuant to Article I shall not be
effective until received.
SECTION 13.03. No Waiver; Remedies. No failure on the part of the
Agent, any Purchaser, any Seller or the Sellers' Representative 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. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 13.04. Binding Effect; Assignability. This Agreement shall
be binding upon and inure to the benefit of Sellers, the Agent, the Purchasers
and their respective successors and permitted assigns, and the provisions of
Section 4.02 and Article XII shall inure to the benefit of the Affected Parties
and the Indemnified Parties, respectively, and their respective successors and
assigns. 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 Commitment Termination Date, as no
Undivided Interest shall be outstanding. The rights and remedies with respect
to any breach of any representation and warranty made by each Seller pursuant
to Article VI and the indemnification and payment provisions of Article XII and
Sections 4.02 and 13.06 shall be continuing and shall survive any termination
of this Agreement.
SECTION 13.05. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the internal laws of the State of Illinois,
except to the extent that the validity
-46-
52
or perfection of the interests of the Agent or the Purchasers in the
Receivables, or remedies hereunder in respect thereof, are governed by the laws
of a jurisdiction other than the State of Illinois.
SECTION 13.06. Costs, Expenses and Taxes. In addition to its
obligations under Article XII, Sellers, jointly and severally, agree to pay on
demand:
(a) all costs and expenses in connection with the preparation,
execution and delivery of this Agreement, the Certificate, the other Agreement
Documents and any other documents to be delivered hereunder, including, without
limitation, any amendments, waivers, consents, supplements or other
modifications to any Agreement Documents and the reasonable fees and expenses
of counsel for the Agent, Purchasers and PNC Bank with respect thereto and all
costs and expenses in connection with the administration (including periodic
auditing) and enforcement of this Agreement or the Agreement Documents,
including, without limitation, the reasonable fees and expenses of counsel,
incurred by any Affected Party, including, those costs and expenses incurred
with respect to advising the Agent, Purchasers, PNC Bank, PNC Bank's Affiliates
and any other Affected Party as to their respective rights and remedies under
this Agreement; and
(b) all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of
this Agreement, the Certificates or the other documents to be delivered
hereunder, and agrees to indemnify each Indemnified Party against any
liabilities with respect to or resulting from any delay in paying or omission
to pay such taxes and fees.
SECTION 13.07. Captions and Cross References. The various captions
(including, without limitation, the table of contents) in this Agreement are
included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this
Agreement to any underscored Section or Exhibit are to such Section or Exhibit
of this Agreement, as the case may be.
SECTION 13.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement.
SECTION 13.09. Allocation Among Sellers. API hereby agrees to take,
or cause to be taken, all steps necessary to allocate the liabilities and the
benefits under this Agreement among the
-47-
53
Sellers on the basis of the amount of the Purchases and Reinvestments received
by each such Seller from time to time hereunder. To the extent that any Seller
makes a payment, whether from Collections of Receivables generated by such
Seller or otherwise, for any liability hereunder, in excess of its pro rata
share, such Seller shall have a claim for contribution, which claim shall be
subordinated to all of the claims of the Purchasers, the Agent, the Affected
Parties and the Indemnified Parties hereunder, against the other Sellers to the
extent necessary to result in a pro rata payment by all of the Sellers. Each
Seller hereby agrees to promptly pay any such claims for contribution.
-48-
54
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.
Percentage PNC BANK, NATIONAL ASSOCIATION,
50% as a Purchaser
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name Printed: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
Xxxxx Xxxxxx xxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
with notice to:
PNC Bank, National Association
000 Xxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
AMENDED AND RESTATED
RECEIVABLES PURCHASE
AGREEMENT
S-1
55
Percentage THE SANWA BANK, LIMITED,
20% as a Purchaser
By /s/ Xxxxxx Xxxxx
--------------------------------
Name Printed: Xxxxxx Xxxxx
Title: Assistant General Manager
00 Xxxxx Xxxxxx Xxxxx, Xxx. 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
AMENDED AND RESTATED
RECEIVABLES PURCHASE
AGREEMENT
X-0
00
Xxxxxxxxxx XXXXXXX GENERALE,
30% as a Purchaser
By /s/ Xxxxxx Xxxxxxx
--------------------------------
Name Printed: Xxxxxx Xxxxxxx
Title: Vice President Team Leader
By /s/ Xxxxx Xxxxxx
--------------------------------
Name Printed: Xxxxx Xxxxxx
Title: Assistant Vice President
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
AMENDED AND RESTATED
RECEIVABLES PURCHASE
AGREEMENT
S-3
57
PNC BANK, NATIONAL ASSOCIATION,
as the Agent
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name Printed: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
Xxxxx Xxxxxx xxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Eurocurrency Office:
Xxxxx Xxxxxx xxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
with notice to:
PNC Bank, National Association
000 Xxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
AMENDED AND RESTATED
RECEIVABLES PURCHASE
AGREEMENT
S-4
58
APPLIED POWER INC.,
as a Seller and initial Servicer
By /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------
Name Printed: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President, Tax and
Treasurer
Address: 00000 X. Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
Phone: 414/000-0000
Facsimile No.: 414/783-9790
Attention: Treasurer
XXXXX XXXXXX CORPORATION,
as a Seller
By /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name Printed: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President, Tax and
Treasurer
Address: 00 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: 617/254-7381
Attention: Treasurer
GB ELECTRICAL, INC., as a Seller
By /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name Printed: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President, Tax and
Treasurer
Address: 0000 X. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: 414/228-1616
Attention: Treasurer
AMENDED AND RESTATED
RECEIVABLES PURCHASE
AGREEMENT
S-5
59
XXXXXX LINE INC., as a Seller
By /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name Printed: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President, Tax and
Treasurer
Address: 000 Xxxx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Facsimile No.: 508/752-4909
Attention: Treasurer
AMENDED AND RESTATED
RECEIVABLES PURCHASE
AGREEMENT
S-6
60
DEFINITIONAL APPENDIX
TO RECEIVABLES PURCHASE AGREEMENT
SCHEDULE I
DEFINITIONS
1.1. Definitions. As used in this Agreement, unless the context
requires a different meaning, the following terms have the meanings as
indicated:
"Adverse Claim" means a lien, security interest, charge, or
encumbrance, or other right or claim of any Person other than (i) a potential
claim or right (that has not yet been asserted) of a trustee appointed for an
Obligor in connection with any Event of Bankruptcy or (ii) an unfiled lien for
taxes accrued but not yet payable.
"Affected Party" means each of each Purchaser, any permitted assignee
of a Purchaser, the Agent, PNC Bank and any holding company of PNC Bank.
"Affiliate" when used with respect to a Person means any other Person
controlling, controlled by, or under common control with, such Person.
"Affiliated Obligor" has the meaning set forth in the definition of
"Net Pool Balance" in Section 2.07.
"Agent" has the meaning set forth in the preamble.
"Agent's Account" has the meaning set forth in Section 3.06.
"Aggregate Participation Amounts" has the meaning set forth in Section
2.01.
"Aggregate Purchasers' Investments" has the meaning set forth in
Section 2.03.
"Agreement" means the Original Purchase Agreement for as long as it
was in effect, and thereafter this Amended and Restated Receivables Purchase
Agreement, as it may be further amended, supplemented or otherwise modified
from time to time in accordance with the terms hereof.
"Agreement Documents" has the meaning set forth in Section 6.01(c).
I-1
61
"Alternate Reference Rate" means, on any date, a fluctuating rate of
interest per annum equal to the higher of
(a) the rate of interest most recently announced by PNC Bank
at its principal office in Pittsburgh, Pennsylvania as its prime rate;
and
(b) the Federal Funds Rate (as defined below) most recently
determined by PNC Bank plus 1.0%.
For purposes of this definition, "Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal (for each day during such period) to
(i) the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New
York; or
(ii) if such rate is not so published for any day
which is a Business Day, the average of the quotations for
such day on such transactions received by PNC Bank from three
federal funds brokers of recognized standing selected by it.
The Alternate Reference Rate is not necessarily intended to be the lowest rate
of interest determined by PNC Bank in connection with extensions of credit.
"API" has the meaning set forth in the preamble.
"Approved Currency" means each of U.S. Dollars, French Francs, Dutch
Guilders, British Pounds Sterling, German Deutschemarks, Japanese Yen and
Canadian Dollars.
"Arrangement Fee" has the meaning set forth in Section 4.01(a).
"Authorized Financial Officer" of a Person means the chief financial
officer, chief accounting officer, controller, treasurer, assistant treasurer
or vice president - finance of such Person.
"Assignment" means an assignment, in substantially the form of Exhibit
IA, by which a Purchaser's Commitment (or portion thereof) or its interest in
Undivided Interests previously purchased hereunder may be assigned, with such
changes as to which the assigning Purchaser, the related assignee and the Agent
may agree.
I-2
62
"Authorized Agent" with respect to any foreign Seller means an officer
of such Seller or an Affiliate thereof that has been authorized by such Seller
through the granting of a power of attorney or otherwise, to execute and
deliver documents on behalf of such Seller.
"Bank Rate" has the meaning set forth in Section 2.07.
"Business Day" means a day on which both (a) the Agent at its
principal office in Pittsburgh, Pennsylvania is open for business and (b)
commercial banks in New York City are not authorized or required to be closed
for business.
"BWC" has the meaning set forth in the preamble.
"Capital Lease" means, with respect to any Person, any lease of (or
other agreement conveying the right to use) any real or personal property
which, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of such Person.
"Certificate" means a certificate of assignment, by Sellers to the
Agent, on behalf of the Purchasers, in the form of Exhibit IB, evidencing each
Undivided Interest owned by the Agent, on behalf of the Purchasers.
"Collections" means, with respect to any Receivable, all funds which
either (a) are received by any Seller or Servicer from or on behalf of the
related Obligors in payment of any amounts owed (including, without limitation,
purchase prices, finance charges, interest and all other charges) in respect of
such Receivable, or applied to such amounts owed by such Obligors (including,
without limitation, insurance payments that any Seller or Servicer applies in
the ordinary course of its business to amounts owed in respect of such
Receivable and net proceeds of sale or other disposition of repossessed goods
or other collateral or property of the Obligor or any other party directly or
indirectly liable for payment of such Receivable and available to be applied
thereon), or (b) are deemed to have been received by any Seller or any other
Person as a Collection pursuant to Section 3.03 or 3.04; provided that, prior
to such time as API shall cease to be the Servicer, late payment charges,
collection fees and extension fees shall not be deemed to be Collections.
"Commitment" has the meaning set forth in Section 1.01.
"Commitment Fee" has the meaning set forth in Section 4.01(b).
"Commitment Termination Date" has the meaning set forth in Section
1.02.
I-3
63
"Computation Period" means any period of four consecutive Fiscal
Quarters ending on the last day of a Fiscal Quarter.
"Conditions Precedent" has the meaning set forth in Section 5.02.
"Concentration Limit" has the meaning set forth in the definition of
"Net Pool Balance" in Section 2.07.
"Consolidated Interest Expense" means, for any period, the
consolidated interest expense of API and its Subsidiaries for such period, as
determined in accordance with GAAP and in any event including, without
duplication, all commissions, discounts and other fees and charges owed with
respect to letters of credit and banker's acceptances, net costs under interest
rate protection agreements and the portion of any Capital Leases allocable to
consolidated interest expense.
"Consolidated Net Income" means, for any period, all amounts which, in
conformity with GAAP, would be included under net income on a consolidated
income statement of API and its Subsidiaries for such period.
"Contract" means a contract between a Seller and any Person, or an
invoice from a Seller to any Person, in one of the forms of contracts or
invoices, as appropriate, set forth in Exhibit IC or otherwise approved by the
Agent, pursuant to or under which such Person shall be obligated to make
payments to a Seller from time to time.
"Credit and Collection Policy" means those credit and collection
policies and practices relating to Contracts and Receivables described in
Exhibit ID, as modified without violating Section 7.03(c).
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, whether or not evidenced by bonds,
debentures, notes or similar instruments, (b) all obligations of such Person as
lessee under Capital Leases which have been recorded as liabilities on a
balance sheet of such Person, (c) all obligations of such Person to pay the
deferred purchase price of property or services (other than current accounts
payable in the ordinary course of business), (d) all indebtedness secured by a
Lien on the property of such Person, whether or not such indebtedness shall
have been assumed by such Person (it being understood that if such Person has
not assumed or otherwise become personally liable for any such indebtedness,
the amount of the Debt of such Person in connection therewith shall be limited
to the lesser of the face amount of such indebtedness or the fair market value
of all property of such Person securing such indebtedness), (e) all
obligations,
I-4
64
contingent or otherwise, with respect to the face amount of all letters of
credit (whether or not drawn) and banker's acceptances issued for the account
of such Person, (f) all obligations of such Person in respect of Hedging
Arrangements, (g) all Suretyship Liabilities of such Person and (h) all Debt
(as defined above) of any partnership in which such Person is a general
partner. The amount of the Debt of any Person in respect of Hedging
Arrangements shall be deemed to be the unrealized net loss position of such
Person thereunder (determined for each counterparty individually, but netted
for all Hedging Arrangements maintained with such counterparty).
"Debt to Capital Ratio" means the ratio of (a) Funded Debt to (b)
Total Capital.
"Default Ratio" means the percentage that (x) the aggregate Unpaid
Balance of all Defaulted Receivables denominated in U.S. Dollars directly
invoiced by a domestic Seller as of a Month End Date was of (y) the aggregate
Unpaid Balance of all Pool Receivables denominated in U.S. Dollars directly
invoiced by a domestic Seller as of such Month End Date.
"Defaulted Receivable" means a Receivable: (i) as to which any
payment, or part thereof, remains unpaid for sixty (60) days from the original
due date for such payment, (ii) as to which the obligor thereof is the obligor
on any other Defaulted Receivable or with regard to which an Event of
Bankruptcy has occurred and remains continuing, (iii) as to which payments have
been extended, or the terms of payment thereof rewritten, without the Agent's
consent or (iv) which, consistent with the Credit and Collection Policy, would
be written off a Seller's books as uncollectible.
"Delinquent Receivable" means a Receivable: (i) as to which any
payment, or part thereof, remains unpaid for thirty (30) days or more from the
original due date for such payment; or (ii) which, consistent with the Credit
and Collection Policy, would be classified as delinquent by a Seller.
"Delinquency Ratio" means the percentage that (x) the aggregate Unpaid
Balances of all Delinquent Receivables denominated in U.S. Dollars directly
invoiced by a domestic Seller as of a Month End Date was of (y) the aggregate
Unpaid Balance of all Pool Receivables denominated in U.S. Dollars directly
invoiced by a domestic Seller as of such Month End Date.
"Designated Obligor" means, at any time, all Obligors of any Seller
except any such Obligor as to which the Agent, on behalf of the Majority
Purchasers, has, at least three Business Days prior to the date of
determination, given notice to Sellers'
I-5
65
Representative that such Obligor shall not be considered a Designated Obligor.
"Determination Date" means with respect to any Purchase or
Reinvestment, or any other calculation of the Dollar Amount, the date that is
two Business Days prior to the date of such Purchase, Reinvestment or
calculation.
"Dilution Ratio" means the percentage that (x) the aggregate amount of
credits, offsets, reductions, discounts or adjustments to the Unpaid Balance of
Pool Receivables denominated in U.S. Dollars and directly invoiced by a
domestic Seller granted or allowed by the Sellers, or any of them, during a
month was of (y) the Unpaid Balance of all Pool Receivables denominated in U.S.
Dollars and directly invoiced by a domestic Seller as of the Month End Date for
such month.
"Discount Rate" has the meaning set forth in Section 2.07.
"Dollar Amount" means:
(a) with respect to U.S. Dollars or an amount denominated in
U.S. Dollars, such amount; and
(b) with respect to an amount of any other Approved Currency
or an amount denominated in such Approved Currency, the amount of U.S.
Dollars into which the Agent could, in accordance with its practice
from time to time in the interbank foreign exchange market, convert
such amount of Approved Currency at its spot rate of exchange
(inclusive of all related costs of conversion) applicable to the
relevant transaction at or about 8:00 a.m., Pittsburgh time, on the
applicable Determination Date for the delivery of U.S. Dollars on the
applicable date contemplated in this Agreement.
"Dollars" or "U.S. Dollars" means dollars in lawful money of the
United States of America.
"Earned Discount" has the meaning set forth in Section 2.05.
"Eligible Receivable" means, at any time and with respect to any
Undivided Interest, a Receivable evidenced by a Contract:
(i) which, if the perfection of Purchasers' undivided
ownership interests therein is governed by the laws of a jurisdiction
where the Uniform Commercial Code -- Secured Transactions is in force,
constitutes an account or general intangible as defined in the Uniform
Commercial Code as in effect in such jurisdiction;
I-6
66
(ii) the primary Obligor of which is not an Affiliate of any of the
parties hereto, and, if such Receivable is denominated in U.S. Dollars, is
either a United States resident or is listed on Schedule IA;
(iii) the Obligor of which is a Designated Obligor;
(iv) the Obligor of which is not the Obligor of any Defaulted
Receivable, the Unpaid Balance of which exceeds 25% of the aggregate Unpaid
Balance of all Receivables of such Obligor;
(v) which is not a Defaulted Receivable;
(vi) with regard to which the warranty in Section 6.01(l) is true and
correct;
(vii) if such Receivable is denominated in U.S. Dollars, the balance
of which is required to be paid within the number of days of the original
billing date therefor set forth opposite the name of the Seller that generated
such Receivable on Schedule IB, unless the Unpaid Balance of such Receivable,
when combined with the Unpaid Balance of all other Pool Receivables denominated
in U.S. Dollars that are the subject of extended terms, does not exceed 27% of
the aggregate Unpaid Balance of all Eligible Receivables denominated in U.S.
Dollars;
(viii) the sale of an Undivided Interest in which does not contravene
or conflict with any law or require the consent of the related Obligor;
(ix) which is denominated and payable only in U.S. Dollars drawn on
an account in the United States or in another Approved Currency;
(x) which arises under a Contract that has been duly authorized and
that, together with such Receivable, is in full force and effect and
constitutes the legal, valid and binding obligation of the Obligor of such
Receivable enforceable against such Obligor in accordance with its terms and is
not subject to any dispute, offset, counterclaim or defense whatsoever (except
the discharge in bankruptcy of such Obligor);
(xi) which, together with the Contract related thereto, does not
contravene in any material respect any laws, rules or regulations applicable
thereto (including, without limitation, laws, rules and regulations relating to
usury, truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy) and with
respect to which no party to the Contract related thereto is in violation of
any such law, rule or regulation in any material
I-7
67
respect if such violation would impair the collectability of such Receivable;
(xii) which (A) satisfies all applicable requirements of the Credit
and Collection Policy and (B) complies with such other criteria and
requirements (other than those relating to the collectability of such
Receivable) as the Agent may from time to time specify to Sellers'
Representative following thirty days' notice;
(xiii) the face amount of which does not include any amounts
representing sales tax; and
(xiv) as to which the Agent has not notified Sellers' Representative
that the Required Purchasers have determined, in their sole discretion, that
such Receivable (or class of Receivables) is not acceptable for purchase
hereunder.
"ERISA" means the U.S. Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurocurrency Rate (Reserve Adjusted)" means, with respect to any
Undivided Interest (or portion thereof) for any Yield Period, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined pursuant
to the following formula:
Eurocurrency Rate = Eurocurrency Rate
(Reserve Adjusted) 1-Eurocurrency
Reserve Percentage
where: "Eurocurrency Rate" means, with respect to any Undivided Interest (or
portion thereof) for any Yield Period, the rate per annum at which deposits in
the currency of such Undivided Interest in immediately available funds are
offered to the Eurocurrency Office of the Agent two Eurocurrency Business Days
prior to the beginning of such Yield Period by major banks in the major
interbank eurodollar market as at or about 10:00 a.m., Pittsburgh time, for
delivery on the first day of such Yield Period, for the number of days
comprised therein and in an amount equal or comparable to the amount of the
related Purchasers' Investments of such Undivided Interest (or such portion)
for such Yield Period. "Eurocurrency Business Day" means a day of the year on
which dealings are carried on in the eurodollar interbank market and banks are
open for business in New York City. "Eurocurrency Office" shall mean the
office of the Agent designated as such with its signature hereto and,
thereafter, such other office or offices of the Agent (as designated from time
to time by notice from the Agent to Sellers' Representative) which shall be
funding the Undivided Interests of the Agent hereunder or such other office or
offices through which the Agent
I-8
68
determines the Eurocurrency Rate. A Eurocurrency Office of the Agent may be,
at the option of the Agent, either a domestic or foreign office. "Eurocurrency
Reserve Percentage" means, with respect to each Yield Period, the then
applicable percentage (expressed as a decimal) prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining
reserve requirements applicable to "Eurocurrency Liabilities" pursuant to
Regulation D or any other then applicable regulation of the Board of Governors
(or any successor) that prescribes reserve requirements applicable to
"Eurocurrency Liabilities" as presently defined in Regulation D.
"Event of Bankruptcy" shall be deemed to have occurred with respect to
a Person if either:
(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the liquidation,
reorganization, debt arrangement, dissolution, winding up, or composition or
readjustment of debts of such person, the appointment of a trustee, receiver,
custodian, liquidator, assignee, sequestrator or the like for such Person or
all or substantially all of its assets, or any similar action with respect to
such Person under any law relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts, and such case or proceeding
shall continue undismissed, or unstayed and in effect, for a period of 60
consecutive days; or an order for relief in respect of such Person shall be
entered in an involuntary case under the federal bankruptcy laws or other
similar laws now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other proceeding
under any applicable bankruptcy, insolvency, reorganization, debt arrangement,
dissolution or other similar law now or hereafter in effect, or shall consent
to the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) for, such Person
or for any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail to, or admit in writing
its inability to, pay its debts generally as they become due, or, if a
corporation or similar entity, its board of directors shall vote to implement
any of the foregoing.
"Fiscal Quarter" means any fiscal quarter of a Fiscal Year.
"Fiscal Year" means the fiscal year of API and its Subsidiaries, which
period shall be the 12-month period ending on August 31 of each year.
I-9
69
"Fixed Charge Coverage Ratio" means, for any Computation Period, the ratio of
(a) the sum of
(i) Consolidated Net Income for such period,
plus
(ii) the aggregate amount deducted in respect of
federal, state, local and foreign income taxes
in determining such Consolidated Net Income,
plus
(iii) Consolidated Interest Expense for such period,
plus
(iv) the aggregate amount deducted in respect of
leases that were not Capital Leases in
determining such Consolidated Net Income,
plus
(v) the aggregate amount deducted in respect of
amortization of intangible assets (including
goodwill) in determining such Consolidated Net
Income,
to
(b) the sum of
(i) Consolidated Interest Expense for such period,
plus
(ii) the aggregate amount deducted in respect of
leases that were not Capital Leases in
determining such Consolidated Net Income.
"Foreign Currency Limit" has the meaning set forth in Section 1.03(d).
"Foreign Receivables Limit" has the meaning set forth in Section
1.03(e).
"Funded Debt" of any Person at any date of determination means the sum
of all Debt described in clauses (a) and (b) of the definition of "Debt".
I-10
70
"GAAP" means those U.S. generally accepted accounting principles
applied in the preparation of the audited financial statements referred to in
Section 6.01(i).
"GB" has the meaning set forth in the preamble.
"Hedging Arrangement" means any interest rate swap, cap or collar
agreement, currency swap agreement or other arrangement designed to hedge
interest rate and/or currency risk.
"Indemnified Amounts" has the meaning set forth in Section 12.01.
"Indemnified Party" has the meaning set forth in Section 12.01.
"Investment" means, with respect to any Person:
(a) any loan or advance made by such Person to any other
Person; and
(b) any capital contribution made by such Person to, or
ownership or similar interest held by such Person in, any other
Person.
The amount of any Investment shall be the original principal or
capital amount thereof less all returns of principal or equity thereon (and
without adjustment by reason of the financial condition of such other Person)
and shall, if made by the transfer or exchange of property other than cash, be
deemed to have been made in an original principal or capital amount equal to
the fair market value of such property.
"Joinder Agreement" has the meaning set forth in Section 1.08(b).
"Liquidation Day" for any Undivided Interest means any of (i) each day
which occurs on or after the date designated by the Agent to Sellers'
Representative to be the "Liquidation Commencement Date", provided such date is
designated on at least one Business Day's notice during a time when any of the
conditions set forth in Section 5.02 are not satisfied, (ii) each day which
occurs on or after the Commitment Termination Date for such Undivided Interest,
or (iii) each day which occurs thirty days after Sellers' Representative shall
have given written notice to the Agent that Sellers no longer wishes to sell
undivided interests in the Receivables Pool to Purchasers. There shall be no
Liquidation Day for any Undivided Interest after it shall equal zero.
I-11
71
"Liquidation Period" means one or more contiguous Liquidation Days.
"Liquidations" means for any period, the Collections of a Seller for
such period.
"Lock-Box Agreement" means an agreement, in substantially the form of
Exhibit IE, executed by a Seller and a Lock-Box Bank.
"Lock-Box Bank" means any of the banks holding one or more lock-box
accounts for receiving Collections from Pool Receivables that are denominated
in U.S. Dollars and payable by Obligors located in the United States.
"Loss Reserve" has the meaning set forth in Section 2.04.
"Majority Purchasers" means Purchasers having aggregate Percentages in
excess of 67%.
"Month End Date" has the meaning set forth in Section 3.04.
"Net Charge-Off Ratio" means the percentage that (x) the aggregate net
charge-offs and net write-offs of Pool Receivables denominated in U.S. Dollars
and directly invoiced by a domestic Seller recognized during any month was of
(y) Liquidations of Pool Receivables denominated in U.S. Dollars and directly
invoiced by a domestic Seller during such month.
"Net Pool Balance" has the meaning set forth in Section 2.07.
"Obligor" means a Person obligated to make payments pursuant to a
Receivable.
"Original Purchase Agreement" has the meaning set forth in Paragraph 1
of the Background.
"Outstanding Investment" has the meaning set forth in Section 2.03.
"Participation Amounts" with respect to any Undivided Interest at any
time means the sum of Purchasers' Investments and the Loss Reserve with respect
to such Undivided Interest at such time.
"Participation Amounts Limit" has the meaning set forth in Section
1.03(b).
"Percentage" with respect to any Purchaser, means the percentage set
forth for such Purchaser on the signature page hereto, as it may be adjusted
from time to time pursuant to an Assignment.
I-12
72
"Periodic Report" means a report, in substantially the form of Exhibit
IF, furnished by Servicer to the Agent for each Purchaser pursuant to Section
3.05.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company, government or any agency or political
subdivision thereof or any other entity.
"PNC Bank" has the meaning set forth in the preamble.
"Pool Receivable" means a Receivable in the Receivables Pool.
"Purchase" means a purchase by the Agent, on behalf of the Purchasers,
of an Undivided Interest from Sellers pursuant to Article II; it being
understood, that a Reinvestment is not a "Purchase".
"Purchase Limit" has the meaning set forth in Section 1.03(a).
"Purchase Termination Event" means any failure to satisfy the
condition set forth in Section 5.02.
"Purchaser" has the meaning set forth in the preamble.
"Purchasers' Investments" has the meaning set forth in Section 2.03.
"Purchasers' Share" has the meaning set forth in Section 2.08.
"Receivable" means any right to payment from an obligor, whether
constituting an account, chattel paper, instrument or general intangible,
arising from the sale of products by a Seller in the ordinary course of its
business, and includes the right to payment of any interest or finance charges
and other obligations of such obligor with respect thereto.
"Receivables Pool" means at any time all then outstanding Receivables
which (i) were generated by a Seller in the ordinary course of business, and
(ii) as to which the Obligors thereunder are Designated Obligors. If, with
respect to any Undivided Interest, a Receivable is a Pool Receivable on the day
immediately preceding the Termination Date for such Undivided Interest, such
Receivable shall continue to be considered a Pool Receivable with respect to
such Undivided Interest at all times thereafter.
I-13
73
"Recourse Amount" has the meaning set forth in Section 3.04.
"Recourse Percentage" means the greater of (i) 16% and (ii) three
times the highest Default Ratio that has occurred during the preceding 12
successive months.
"Recourse Unpaid Balances" has the meaning set forth in Section 3.04.
"Regulatory Change" means, relative to any Affected Party
(a) any change in (or the adoption, implementation, phase-in or
commencement of effectiveness of) any
(i) United States federal or state law or foreign law
applicable to such Affected Party;
(ii) regulation, interpretation, directive, requirement or
request (whether or not having the force of law) applicable to such
Affected Party of (A) any court, government authority charged with the
interpretation or administration of any law referred to in clause
(a)(i) or of (B) any fiscal, monetary or other authority having
jurisdiction over such Affected Party; or
(iii) generally accepted accounting principles or regulatory
accounting principles applicable to such Affected Party and affecting
the application to such Affected Party of any law, regulation,
interpretation, directive, requirement or request referred to in
clause (a)(i) or (a)(ii) above; or
(b) any change in the application to such Affected Party of any
existing law, regulation, interpretation, directive, requirement, request or
accounting principles referred to in clause (a)(i), (a)(ii) or (a)(iii) above.
"Reinvestment" means the purchase of additional undivided interests
that are added to a related Undivided Interest with proceeds of Collections
that initially were applied to reduce such Undivided Interest pursuant to
Section 3.01.
"Related Security" means, with respect to any Pool Receivable: (i)
all of any Seller's right, title and interest in and to all security agreements
or other agreements that relate to such Pool Receivable; (ii) all of any
Seller's interest in the merchandise (including returned merchandise), if any,
relating to the sale which gave rise to such Pool Receivable; (iii) all other
security interests or liens and property subject thereto from time to time
purporting to secure payment of such Pool Receivable, whether pursuant to the
Contract related to such Pool
I-14
74
Receivable or otherwise; (iv) all UCC financing statements covering any
collateral securing payment of such Pool Receivable; and (v) all guarantees and
other agreements or arrangements of whatever character from time to time
supporting or securing payment of such Pool Receivable whether pursuant to the
Contract related to such Pool Receivable or otherwise. The interest of the
Purchasers' in any Related Security is only to the extent of the Purchasers'
Undivided Interest, as more fully described in the definition of an Undivided
Interest.
"Remaining Collections" has the meaning set forth in Section
3.01(a)(ii).
"Reporting Date" has the meaning set forth in Section 3.05.
"Repurchase Termination Date" for any Undivided Interest means that
Business Day which Sellers' Representative designates, or, if any of the
Conditions Precedent in Section 5.02 are not satisfied (other than the absence
of an Unmatured Termination Event), such Business Day which the Agent
designates, as the Repurchase Termination Date for such Undivided Interest by
notice to the Agent (if Sellers' Representative so designates) or to Seller's
Representative (if the Agent so designates) at least one Business Day prior to
such Business Day.
"Scheduled Commitment Termination Date" has the meaning set forth in
Section 1.02.
"Seller" and "Sellers" have the meanings set forth in the preamble.
"Sellers' Representative" has the meaning set forth in the preamble.
"Servicer" means at any time the Person then authorized pursuant to
Article VIII to service, administer and collect Pool Receivables.
"Servicer Transfer Event" has the meaning set forth in Section 8.01(a).
"Servicer's Fee" has the meaning set forth in Section 2.07.
"Settlement" means the payments and other actions provided for on the
last day of each Settlement Period.
"Settlement Date" means the last day of each Yield Period.
"Settlement Period" for any Undivided Interest means each period
commencing on the first day of each Yield Period for such Undivided Interest
and ending on the last day of such Yield
I-15
75
Period, and, on and after the Termination Date for such Undivided Interest,
such period (including, without limitation, a daily period) as shall be
selected from time to time by the Agent or, in absence of any such selection,
each period of thirty days from the last day of the immediately preceding
Settlement Period; provided, however, that with respect to any Yield Period of
one day as described in clause (ii) of the proviso clause of the definition of
"Yield Period", the related Settlement Period shall be the first day following
such Yield Period.
"Shareholders' Equity" means, at any date of determination, all
amounts which would be included under shareholders' equity on a consolidated
balance sheet of API and its Subsidiaries or Applied Power S.A. and its
Subsidiaries, as the case may be.
"Special Concentration Limit" has the meaning set forth in the
definition of "Net Pool Balance" in Section 2.07.
"Subsidiary" means a corporation of which any Seller and/or its other
Subsidiaries own, directly or indirectly, such number of outstanding shares as
have more than 50% of the ordinary voting power for the election of directors.
"Successor Notice" has the meaning set forth in Section 8.01(a).
"Suretyship Liability" means any agreement, undertaking or other
contractual arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect agreement,
contingent or otherwise, to provide funds for payment, to supply funds to or
otherwise to invest in a debtor, or otherwise to assure a creditor against
loss) any indebtedness, obligation or other liability (including accounts
payable) of any other Person (other than by endorsements of instruments in the
course of collection), or guarantees the payment of dividends or other
distributions upon the shares of any other Person. The amount of any Person's
obligation under any Suretyship Liability shall (subject to any limitation set
forth therein) be deemed to be the principal amount of the indebtedness,
obligation or other liability guaranteed thereby.
"Termination Date" for any Undivided Interest means the earlier of (i)
the Repurchase Termination Date for such Undivided Interest and (ii) the
Commitment Termination Date.
"Termination Event" has the meaning set forth in Section 9.01.
I-16
76
"Total Capital" at any date of determination means the sum of
(a) Funded Debt,
plus
(b) all federal, state, local and foreign income taxes carried as
deferred income taxes in accordance with GAAP on the consolidated balance sheet
of API and its Subsidiaries,
plus
(c) Shareholders' Equity of API and its Subsidiaries.
"Total Investment" has the meaning set forth in Section 2.03.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the applicable jurisdiction or jurisdictions.
"Undivided Interest" has the meaning set forth in Section 2.01.
"Unmatured Termination Event" means any event which, with the giving
of notice or lapse of time, or both, would become a Termination Event.
"Unpaid Balance" of any Receivable means at any time the unpaid amount
thereof (but excluding all late payment charges, delinquency charges, and
extension or collection fees to the extent such charges or fees, if collected,
would not be Collections).
"WLI" has the meaning set forth in the preamble.
"Yield Period" means with respect to any Undivided Interest (or
portion thereof) (i) prior to the Termination Date, the period, commencing on
the date of the initial Purchase of such Undivided Interest or on the prior
Settlement Date, as the case may be, of one, two or three months, as designated
by the notice by Sellers' Representative received by the Agent (including
notice by telephone, confirmed in writing) not later than 12:00 noon
(Pittsburgh time) four Business Days prior to such date of Purchase or
Settlement Date, except that if the Agent shall not have received such notice
prior to such day, such period shall be one month; and (ii) after the
Termination Date, such number of days as the Agent shall select; provided,
however, that (I) any such Yield Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day (unless the related Undivided Interest shall be accruing
I-17
77
Earned Discount at a rate determined by reference to the Eurocurrency Rate
(Reserve Adjusted), in which case if such succeeding Business Day is in a
different calendar month, such Yield Period shall instead be shortened to the
next preceding Business Day); (II) in the case of Yield Periods of one day for
any Undivided Interest, (A) the initial Yield Period shall be the day of the
related Purchase; (B) any subsequently occurring Yield Period which is one day
shall, if the immediately preceding Yield Period is more than one day, be the
last day of such immediately preceding Yield Period, and if the immediately
preceding Yield Period is one day, be the day next following such immediately
preceding Yield Period; and (C) any Yield Period of one day which occurs on a
day immediately preceding a day which is not a Business Day shall be extended
to the next succeeding Business Day; and (III) in the case of any Yield Period
for any Undivided Interest which commences before the Termination Date for such
Undivided Interest and would otherwise end on a date occurring after such
Termination Date, such Yield Period shall end on such Termination Date and the
duration of each such Yield Period which commences on or after the Termination
Date for such Undivided Interest shall be of such duration as shall be selected
by the Agent. The "related" Yield Period for any Undivided Interest at any
time means the Yield Period pursuant to which Earned Discount is then accruing
for such Undivided Interest.
1.2. Other Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles.
All terms used in Article 9 of the UCC in the State of Illinois, and not
specifically defined herein, are used herein as defined in such Article 9.
1.3. Computation of Time Periods. Unless otherwise stated in this
Agreement, in the computation of a period of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
I-18
