EXECUTION COPY 753303507 23728593 RECEIVABLES SALE AGREEMENT DATED AS OF JUNE 20, 2023 by and among EACH OF THE ENTITIES LISTED ON EXHIBIT II HERETO, as the Originators, COLUMBUS MCKINNON CORPORATION, as the Master Servicer, and COLUMBUS MCKINNON...
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EXECUTION COPY 753303507 23728593 RECEIVABLES SALE AGREEMENT DATED AS OF JUNE 20, 2023 by and among EACH OF THE ENTITIES LISTED ON EXHIBIT II HERETO, as the Originators, COLUMBUS XXXXXXXX CORPORATION, as the Master Servicer, and COLUMBUS XXXXXXXX XXXXX, LLC, as the Buyer
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Receivables Sale Agreement 753303507 23728593 RECEIVABLES SALE AGREEMENT THIS RECEIVABLES SALE AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of June 20, 2023 (the “Closing Date”), is by and among Xxxxxxxx XxXxxxxx Corporation, a New York corporation (“Columbus”), as an Originator and as master servicer (together with its successors and assigns in such capacity, the “Master Servicer”), each of the other entities listed on Exhibit II hereto (together with Columbus in its capacity as an Originator, each, an “Originator” and collectively, the “Originators”), and Columbus XxXxxxxx XxxXx, LLC, a Delaware limited liability company (the “Buyer”). Unless defined elsewhere herein, capitalized terms used in this Agreement shall have the meanings assigned to such terms in Exhibit I attached hereto (or, if not defined in this Agreement, the meanings assigned to such terms in Exhibit I to the Credit and Security Agreement (hereinafter defined)). PRELIMINARY STATEMENTS The Originators now own, and from time to time hereafter will own, certain Receivables. Upon the terms and conditions hereinafter set forth, from and after the Closing Date, each of the Originators wishes to sell, assign, transfer, contribute or otherwise convey to the Buyer, and the Buyer wishes to purchase or otherwise acquire from such Originator all of such Originator’s right, title and interest in and to all of its existing and future Receivables, together with the Related Security (hereinafter defined) and Collections with respect thereto and all proceeds of the foregoing. Each Originator and the Buyer intend the transactions contemplated hereby to be true sales and/or contributions of the Receivables Assets (hereinafter defined) from the Originators to the Buyer, providing the Buyer with the full benefits of ownership of the Receivables Assets, and none of the Originators or the Buyer intends these transactions to be, or for any purpose to be characterized as, loans from the Buyer to any Originator secured by the Receivables Assets. Immediately following its acquisition of the Receivables Assets from the Originators, the Buyer will pledge them to Xxxxx Fargo Bank, National Association, as administrative agent (together with its successors and assigns in such capacity, the “Administrative Agent”) pursuant to that certain Credit and Security Agreement, dated as of the Closing Date, by and among the Buyer, as borrower, the Master Servicer, the lenders from time to time party thereto (together with their successors and assigns in such capacity, the “Lenders”), and the Administrative Agent (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit and Security Agreement”). NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I AMOUNTS AND TERMS Section 1.1. Purchase and Contribution of Receivables. (a) Effective as of the Closing Date, Columbus hereby contributes, assigns, transfers and otherwise conveys to the Buyer’s capital, without recourse to Columbus (except to the extent expressly provided herein), and the Buyer hereby accepts, (i) Columbus’ right, title and interest in and to certain of Columbus’ Receivables existing as of the close of business on the Initial Cutoff Date and having an
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2 Receivables Sale Agreement 753303507 23728593 aggregate Outstanding Balance greater than or equal to the Required Capital Amount, and (ii) Columbus’ right, title and interest in and to Columbus’ Receivables arising after the Initial Cutoff Date through and including Columbus’ Termination Date to the extent necessary to cause the Outstanding Balance of all Receivables contributed under clause (i) or this clause (ii) (collectively, the “Contributed Receivables”) to be equal to or exceed the Required Capital Amount, together with all Related Security and Collections associated therewith (collectively, the “Contributed Receivables Assets”). Effective as of the Closing Date, in consideration for the Purchase Price and upon the terms and subject to the conditions set forth herein, each of the Originators hereby sells, assigns, transfers and otherwise conveys to the Buyer, without recourse (except to the extent expressly provided herein), and the Buyer hereby purchases from each Originator, all of such Originator’s right, title and interest in and to all Receivables (other than Contributed Receivables) existing as of the close of business on the Initial Cutoff Date and all Receivables (other than Contributed Receivables) thereafter arising through and including such Originator’s Termination Date immediately upon the creation of each such Receivable (collectively, the “Purchased Receivables”), together, in each case, with all Related Security relating thereto and all Collections thereof (collectively, the “Purchased Receivables Assets”, and the Purchased Receivables Assets, together with the Contributed Receivables Assets, the “Receivables Assets”). In accordance with the preceding two sentences, on the Closing Date, the Buyer shall acquire all of the Originators’ right, title and interest in and to the Receivables Assets. The Buyer shall be obligated to pay the Purchase Price for each Purchased Receivable in accordance with Section 1.2. (b) It is the intention of the parties hereto that each transfer of Receivables hereunder shall constitute a true sale and/or true contribution, which sale and/or contribution, as the case may be, is absolute and irrevocable and provides the Buyer with the full benefits of ownership of the Receivables Assets. Except for the Purchase Price Credits owed pursuant to Section 1.3, each transfer of Receivables Assets hereunder is made without recourse to any of the Originators for losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy, lack of creditworthiness or other financial or credit condition of the related Obligor resulting in the inability to pay in respect of an Obligor; provided, however, that (i) each Originator shall be liable to the Buyer for all representations, warranties, covenants and indemnities made by it pursuant to the terms of the Transaction Documents to which it is a party, and (ii) such transfer does not constitute and is not intended to result in an assumption by the Buyer or any assignee thereof of any obligation of the Originators or any other Person arising in connection with the Receivables Assets or any other obligations of the Originators. In view of the intention of the parties hereto that each purchase and contribution shall constitute a true sale and/or true contribution of Receivables Assets, rather than a loan secured thereby, each Originator agrees that it will, in accordance with Section 4.1(l)(ii), include a notation in its master data processing records relating to the Receivables to indicate that the Purchased Receivables and the Contributed Receivables are “SOLD RECEIVABLES”. Section 1.2. Payment for Purchases. (a) The Purchase Price for each Purchased Receivable shall become owing in full by the Buyer to the applicable Originator or its designee on the date each such Receivable comes into existence and shall be paid not later than the next Payment Date thereafter as follows: (i) On the terms and subject to the conditions set forth in this Agreement and the Credit and Security Agreement, the Buyer shall pay to the Master Servicer, for the account of the applicable Originators, in immediately available funds, to the extent of Available Cash on such Payment Date, in the following order:
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3 Receivables Sale Agreement 753303507 23728593 first, the Purchase Price for the Receivables sold by each Originator on such purchase date; and second, to reduce the principal amount outstanding under each Originator’s Subordinated Note to a balance not less than zero ($0.00); (ii) To the extent that any portion of the Purchase Price owing to an Originator remains unpaid, the principal amount outstanding under such Originator’s Subordinated Note shall be automatically increased by an amount equal to the remaining unpaid portion of such Purchase Price, but subject to the limitations set forth in Section 1.2(b); and (iii) To the extent that the Buyer is entitled to any Purchase Price Credit pursuant to Section 1.3 in respect of Purchased Receivables and the amount of such Purchase Price Credit exceeds the Purchase Price that would have been owed by such Buyer to the applicable Originator under clause (i) above without taking such Purchase Price Credit into account for purposes of the calculation of such price, the principal amount outstanding under such Originator’s Subordinated Note shall be automatically decreased (to a balance not less than zero ($0.00)). (b) To the extent that the Buyer does not have sufficient Available Cash to pay in full the Purchase Price for all Receivables payable on any Payment Date in cash as set forth in Section 1.2(a), each Originator agrees to advance a subordinated loan in an aggregate principal amount not to exceed the lesser of (A) the unpaid portion of the Purchase Price of all Purchased Receivables sold by such Originator remaining following the payments specified in clause (a)(i) above and (B) the maximum loan (each such loan, a “Subordinated Loan”) that could be borrowed by the Buyer from the applicable Originator without rendering the Buyer’s Net Worth less than the Required Capital Amount. Each Originator irrevocably agrees to advance each Subordinated Loan requested by the Buyer prior to such Originator’s Termination Date. Each Subordinated Loan shall be evidenced by, and shall be payable in accordance with the terms and provisions of a Subordinated Note and shall be payable solely from Available Cash. The Master Servicer shall make all appropriate record keeping entries with respect to each Subordinated Note to reflect the increases, payments and reductions made in respect of such Subordinated Note pursuant to Sections 1.2(b) and 1.3, and the Master Servicer’s books and records shall constitute rebuttable presumptive evidence of the principal amount of, and accrued interest on, each Subordinated Note at any time. Each Originator hereby irrevocably authorizes the Master Servicer to mark its Subordinated Note “CANCELED” and to return such Subordinated Note to the Buyer upon the final payment thereof after the occurrence of such Originator’s Termination Date. Each Originator acknowledges that it has received a copy of its Subordinated Note and so long as it is a Holder, agrees to be bound by, and to comply with, all the terms of such Subordinated Note, including, without limitation, the Subordination Provisions. (c) Although the Purchase Price for each Receivable purchased after the date hereof shall be due and payable by the Buyer to the applicable Originator on the date such Receivable comes into existence, a precise reconciliation of the Purchase Prices between the Buyer and each Originator shall be effected on a Payment Date with respect to all Receivables sold or contributed during the Calculation Period (or portion thereof) most recently ended prior to such Payment Date. Although such reconciliation shall be effected on Payment Dates, increases or decreases in the principal balance of each Subordinated Note and any contribution of capital by the Originators to the Buyer made pursuant to this Agreement shall be deemed to have occurred and shall be effective as of the date such Receivable comes into existence; provided that the interest due and owing on each Subordinated Note on any Payment Date shall continue to be calculated based on the principal amount outstanding as of the prior Payment Date.
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4 Receivables Sale Agreement 753303507 23728593 On each Payment Date, each Originator shall determine the net increase or the net reduction in the outstanding principal amount of its Subordinated Note and, solely with respect to Columbus, the amount of any capital contributions occurring during the immediately preceding Calculation Period (or portion thereof) and, in each case, shall account for such net increase or net reduction in its books and records. Section 1.3. Purchase Price Credit Adjustments. If on any day: (a) the Outstanding Balance of a Receivable originated by any Originator is reduced or canceled due to: (i) any defective or rejected goods or services, any cash discount or any other adjustment by such Originator or any Affiliate thereof (other than as a result of any Collections), or as a result of any governmental or regulatory action, or (ii) any setoff in respect of any claim by the Obligor thereof (whether such claim arises out of the same transaction or a related or unrelated transaction), or (iii) any obligation or election of such Originator or any Affiliate thereof to pay the related Obligor any warranty claim, rebate or refund, or (iv) any misstatement of the amount thereof, or (v) any extension, amendment or other modification to the payment terms of any Receivable or any Contract related to such Receivable in any material respect other than in accordance with the Credit and Collection Policy, or (b) any of the representations and warranties set forth in Section 2.1(l) through and including Section 2.1(r) is not true when made or deemed made with respect to any Receivable, then, in any such event, the Buyer shall be entitled to a credit (each, a “Purchase Price Credit”) against the Purchase Price otherwise payable hereunder equal to (A) in the case of clauses (a)(i)-(v) above, the amount by which the Outstanding Balance of such Receivable was reduced as a result thereof; and (B) in the case of clause (b) above, the Outstanding Balance of such Receivable. If, on any day prior to an Originator’s Termination Date, the Purchase Price Credit due from such Originator exceeds the Purchase Price payable to such Originator on such day, the excess amount may be credited against the Purchase Price payable to such Originator on one or more subsequent days; provided, however, that (1) if any portion of a Purchase Price Credit remains unrealized on such Originator’s Termination Date, it shall be payable by the applicable Originator in cash to a Collection Account on such Termination Date; (2) if any of the events described in clauses (a)(i)-(v) above or clause (b) above occurs after such Termination Date, the resulting Purchase Price Credit shall be paid by the applicable Originator in cash to a Collection Account within two (2) Business Days after such occurrence; (3) if any Amortization Event has occurred and is continuing or any Overadvance shall exist, the resulting Purchase Price Credit shall be paid in cash by the applicable Originator to a Collection Account within two (2) Business Days after such day and (4) no Purchase Price Credit shall include any amount to the extent the same represents losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy, lack of creditworthiness or
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5 Receivables Sale Agreement 753303507 23728593 other financial or credit condition of the related Obligor resulting in the inability to pay in respect of such Obligor. For the avoidance of doubt, this Section 1.3 is not intended to give any Originator or the Master Servicer authorization to extend, amend or otherwise modify the payment terms of any Receivable in any manner except as permitted by the Credit and Security Agreement. Section 1.4. Payments and Computations, Etc. All amounts to be paid or deposited by the Buyer hereunder shall be paid or deposited in accordance with the terms hereof on the day when due in immediately available funds to an account of the Master Servicer, for the account of the applicable Originators, designated from time to time by the Master Servicer or as otherwise directed by the Master Servicer. The Master Servicer shall pay funds so received to the applicable Originator entitled thereto, in cash or by way of credit to the appropriate intercompany account. In the event that any payment owed by any Person hereunder becomes due on a day that is not a Business Day, then such payment shall be made on the immediately following Business Day. If any Person fails to pay any amount hereunder when due, such Xxxxxx agrees to pay, on demand, interest accrued at the Default Rate in respect thereof until paid in full; provided, however, that the Default Rate shall not at any time exceed the maximum rate permitted by applicable Law. All computations of interest payable hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed. Section 1.5. Transfer of Records. In connection with any sale or contribution of Receivables hereunder, each Originator hereby contributes, sells, transfers, assigns and otherwise conveys to the Buyer all of its right and title to and interest in the Records relating to the Receivables sold or contributed hereunder, but solely to the extent related to such Receivables, without the need for any further documentation in connection with such sale or contribution. In connection with such transfer, each Originator hereby grants to each of the Buyer, the Administrative Agent and the Master Servicer an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all software used by such Originator to account for the Receivables, to the extent necessary to administer the Receivables, whether such software is owned by the applicable Originator or is owned by others and used by any Originator under license agreements with respect thereto; provided, however, that so long as the Records maintained in any software the license or sublicense of which hereunder would require the consent of the applicable licensor can be exported to Excel, such software shall not be included in the license granted in this Section 1.5. The license granted hereby shall be irrevocable until the payment in full of the Aggregate Unpaids (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted), and shall automatically terminate on the date this Agreement terminates in accordance with its terms. Section 1.6. Characterization. If, notwithstanding the intention of the parties expressed in Section 1.1(b), any transfer by any Originator to the Buyer of Receivables hereunder shall be characterized in any manner other than a true sale or true contribution or such transfer for any reason shall be ineffective or unenforceable, then this Agreement shall be deemed to constitute a security agreement under the applicable UCC and other applicable Law. For this purpose and without being in derogation of the parties’ intention that each transfer shall constitute a true sale or true contribution and absolute assignment thereof, each of the
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6 Receivables Sale Agreement 753303507 23728593 Originators hereby grants to the Buyer a security interest in all of such Originator’s right, title and interest in, to and under the Receivables Assets and all proceeds thereof, whether existing as of the close of business on the Initial Cutoff Date or thereafter arising through and including such Originator’s Termination Date (collectively, such Originator’s “Originator Collateral”), to secure the prompt and complete payment of a loan deemed to have been made by the Buyer to such Originator in an amount equal to the aggregate Purchase Price for the Purchased Receivables originated by such Originator and, in the case of Columbus, the Purchase Price that would have been payable for the Contributed Receivables had they not been contributed to the Buyer’s capital, together with all other obligations of such Originator hereunder, which security interest each of the Originators hereby represents and warrants, is valid, duly perfected and prior to all Adverse Claims. The Buyer and its assigns shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other applicable Law, which rights and remedies shall be cumulative. ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1. Representations and Warranties of Each of the Originators. Each of the Originators (and solely with respect to clause (y), the Buyer) hereby represents and warrants to the Buyer, solely as to itself and its Originator Collateral, on the Closing Date and on each date thereafter on which a Receivable of such Originator comes into existence prior to its Termination Date: (a) Organization and Qualification. Such Originator is a corporation duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation and such Originator has obtained all necessary licenses and approvals in all jurisdictions in which the conduct of its business or the servicing of the Receivables as required by this Agreement requires such qualification, licenses or approvals except where a failure to do so could not reasonably be expected to have a Material Adverse Effect. (b) Authority; No Conflict or Violation. The execution, delivery and performance by such Originator of the Transaction Documents to which it is a party, the acceptance of a Subordinated Note, the sale and contribution of Receivables by it hereunder and the performance of its obligations under this Agreement and the other Transaction Documents to which it is a party, and the consummation of the transactions contemplated in this Agreement and the other Transaction Documents to which it is a party, have been duly authorized by all necessary corporate action on the part of such Originator and do not and will not (i) require any consent or approval of its board of directors or similar governing body, or any authorization, consent, approval, order, filing, registration or qualification by or with any Governmental Authority, except those that have been obtained and are in full force and effect and except for the filings or notices as may be necessary to perfect the sales and contributions, as applicable, of Receivables Assets pursuant to this Agreement, (ii) violate any provision of (A) any applicable Law or of any order, writ, injunction or decree presently in effect having applicability to such Originator or (B) the Organizational Documents of such Originator, (iii) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other material agreement, lease or instrument to which such Originator is a party or by which it or its properties may be bound or affected, or (iv) result in, or require, the creation or imposition of any Lien or other charge or encumbrance of any nature upon or with respect to any of the assets now owned or hereafter acquired by the Buyer except, with respect to clauses (i), (ii)(A) and (iv) above, where the failure to so comply with any of the foregoing could not reasonably be expected to have a Material Adverse Effect.
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7 Receivables Sale Agreement 753303507 23728593 (c) Legal Agreements. This Agreement and each of the other Transaction Documents to which such Originator is a party have been duly authorized, executed and delivered by such Originator, and constitute the legal, valid and binding obligations of such Originator, enforceable against it in accordance with their respective terms, except to the extent that such enforcement may be limited by bankruptcy, insolvency or similar Laws affecting the enforcement of creditors’ rights generally or by general equitable principles. (d) Compliance with Laws. Such Originator has complied with all applicable Laws, the non- compliance with which could reasonably be expected to have a Material Adverse Effect. (e) Margin Regulations. Such Originator is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no part of the Purchase Price will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (f) Investment Company Act. Such Originator is not required to register as an “investment company” within the meaning of the Investment Company Act. (g) Solvency. Such Originator is and, upon the making of each sale and contribution, as applicable, under this Agreement and after giving effect to the transactions contemplated by this Agreement and the other Transaction Documents, will be, Solvent. (h) Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions. (i) None of (A) such Originator, any Subsidiary or, to the knowledge of such Originator or such Subsidiary, any of their respective directors, officers, employees or Affiliates, or (B) any agent or representative of such Originator or any Subsidiary that will act in any capacity in connection with or benefit from the Transaction Documents, (I) is a Sanctioned Person or currently the subject or target of any Sanctions, (II) has its assets located in a Sanctioned Country, (III) is under administrative, civil or criminal investigation for an alleged violation of, or received notice from or made a voluntary disclosure to any governmental entity regarding a possible violation of, Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions by a governmental authority that enforces Sanctions or any Anti-Corruption Laws or Anti-Money Laundering Laws, or (IV) directly or indirectly derives revenues from investments in, or transactions with, Sanctioned Persons. (ii) Each of such Originator and its Subsidiaries has implemented and maintains in effect policies and procedures designed to ensure compliance by such Originator and its Subsidiaries and their respective directors, officers, employees, agents and Affiliates with all Anti- Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions. (iii) Each of such Originator and its Subsidiaries, and to the knowledge of such Originator, each director, officer, employee, agent and Affiliate of such Originator and each such Subsidiary, is in compliance with applicable Anti-Corruption Laws, Anti-Money Laundering Laws in all respects and applicable Sanctions.
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13 Receivables Sale Agreement 753303507 23728593 Transaction Documents or any Originator’s performance under the Contracts and, in each case, with any of the officers or employees of such Originator having knowledge of such matters (each such visit, a “Review”); provided that, so long as no Termination Event or Amortization Event has occurred and is continuing and that the prior Review, if any, had no material adverse findings, only one (1) Review (which Review may apply to both the Master Servicer and the other Originators) will be permitted under this Section 4.1(d) in any one calendar year; it being understood and agreed that any follow-up examinations, analysis, discussions or visits to address any material adverse findings discovered during the course of a prior Review, if any, shall not constitute a separate Review. (e) Preservation of Existence and Franchises. Such Originator shall maintain its organizational existence and its rights and franchises in full force and effect in its jurisdiction of incorporation. Such Originator shall not change its jurisdiction of incorporation without the prior written consent of the Administrative Agent, and will qualify and remain licensed or qualified as a foreign corporation in each jurisdiction in which the failure to receive or retain such licensing or qualification could reasonably be expected to have a Material Adverse Effect. (f) Insurance. Such Originator shall maintain with financially sound and reputable insurers insurance with respect to its properties and businesses and against such liabilities, casualties and contingencies and of such types and in such amounts as is reasonably satisfactory to the Administrative Agent and as is customary in the case of corporations or other entities engaged in the same or similar business or having similar properties similarly situated. (g) Financial Accounting Practices. Such Originator shall make and keep books, records and accounts which, in reasonable detail, accurately and fairly reflect in all material respects its transactions and dispositions of its assets and maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are recorded as necessary (A) to permit preparation of financial statements in conformity with GAAP and (B) to maintain accountability for assets and (ii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (h) Compliance with Laws. Such Originator shall comply with all applicable Laws, the non- compliance with which could reasonably be expected to have a Material Adverse Effect. (i) Continuation of and Change in Business. Such Originator will continue to engage generally in business and activities substantially similar to the business and activities in which it engages as of the Closing Date, and such Originator will not engage in any materially different business or activity without the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed. (j) Further Assurances. Such Originator will, at its own cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as the Administrative Agent may reasonably request from time to time in order to carry out the intent and purposes of this Agreement and the transactions contemplated by this Agreement and the other Transaction Documents. (k) Compliance with Anti-Corruption Laws; Beneficial Ownership Regulation, Anti-Money Laundering Laws and Sanctions. Such Originator will (i) maintain in effect and enforce policies and procedures designed to ensure compliance by such Originator, its Subsidiaries and their respective
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20 Receivables Sale Agreement 753303507 23728593 Documents; (iv) amend, supplement, or otherwise modify any Transaction Document in accordance with the terms thereof; provided, amendments, supplements or modifications of this Agreement are subject to the requirements of Section 7.1; and (v) release its security interest in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Claims, or extend or renew for one or more periods (whether or not longer than the original period), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property. (c) The Subordination Provisions are made for the benefit of the Senior Claimants, and the Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons. ARTICLE VI INDEMNIFICATION Section 6.1. Indemnities by Each of the Originators. Without limiting any other rights that the Buyer (or the Administrative Agent, as its assignee) or any of the Lenders may have hereunder or under applicable Law, each of the Originators, jointly and severally, hereby agrees to indemnify (and pay upon demand to) the Buyer, the Administrative Agent, the Lenders and their respective successors, assigns, officers, directors, agents and employees (each of the foregoing, an “Indemnified Party”) from and against any and all damages, losses, claims, Taxes, liabilities and reasonable costs and expenses, including reasonable and documented out-of-pocket fees and disbursements of external counsel (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 (i) any Originator’s breach of any representation or warranty under this Agreement or failure to duly and punctually perform its obligations under this Agreement or any other Transaction Document, (ii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing or any Transaction Document, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnified Party is a party thereto or (iii) the acquisition, either directly or indirectly, by the Buyer, the Administrative Agent or any Lender of an interest in the Receivables, in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnified Party, excluding, however, in all of the foregoing instances: (A) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence, willful misconduct or fraud on the part of the Indemnified Party seeking indemnification; (B) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible solely on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; (C) Taxes (other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim, any obligations of Buyer under Section 8.3 or 8.5 of the Credit and Security Agreement and any losses resulting from a breach of the representations contained in Section 3.1(y) of the Credit and Security Agreement or the covenants contained in Section 5.1(u) of the Credit and Security Agreement); or
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21 Receivables Sale Agreement 753303507 23728593 (D) Indemnified Amounts that result from any proceeding solely among Indemnified Parties (other than the Buyer) that does not involve an act or omission by any Columbus Party or any of their Subsidiaries (other than a proceeding that is brought against the Administrative Agent in its capacity as such); provided, however, that nothing contained in this Section 6.1 shall limit the liability of any Originator or limit the recourse of any Indemnified Party to any Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of the Transaction Documents. Without limiting the generality of the foregoing indemnification, each of the Originators shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Buyer) to the extent relating to or resulting from: (i) any representation or warranty made by such Originator (or any officers of such Originator) under or in connection with this Agreement, any other Transaction Document to which such Originator is a party or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made; (ii) the failure by such Originator to comply with any applicable Law with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable Law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract; (iii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document to which it is a party; (iv) any environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable; (v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services; (vi) the commingling of Collections of Receivables or funds or other assets arising therefrom at any time with other funds; (vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of any Receivable, the ownership of the Receivables or any other investigation, litigation or proceeding relating to any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or by any other Transaction Document;
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22 Receivables Sale Agreement 753303507 23728593 (viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding; (ix) any Termination Event under Section 5.1(e) or 5.1(f) with respect to any Originator or the Performance Guarantor; (x) Buyer’s obligations under Section 8.5 of the Credit and Security Agreement; (xi) any breach of the representations contained in Section 3.1(y) of the Credit and Security Agreement or the covenants contained in Section 5.1(u) of the Credit and Security Agreement; (xii) any failure of the Buyer to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from such Originator, free and clear of any Adverse Claim; or any failure of Buyer to give reasonably equivalent value to such Originator under this Agreement in consideration of the transfer by it of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action; (xiii) any failure to vest and maintain vested in the Buyer (or the Administrative Agent, as its assignee) a valid and perfected ownership interest or a first priority perfected Security Interest in the Originator Collateral, free and clear of any Adverse Claim; (xiv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable Laws with respect to any Originator Collateral, whether on the date hereof or at any subsequent time; (xv) the failure by such Originator to pay when due any Taxes, including, without limitation, sales, excise or personal property taxes; (xvi) any action or omission by such Originator which reduces or impairs the rights of the Buyer (or the Administrative Agent, as its assignee) with respect to any Originator Collateral or the value of any Originator Collateral (other than at the direction of the Administrative Agent and except as contemplated by the Transaction Documents); (xvii) any attempt by any Person to void any sale or contribution hereunder or the Security Interest in the Originator Collateral granted hereunder, whether under statutory provision, common law or equitable action; (xviii) any civil penalty or fine assessed by OFAC or any other Governmental Authority administering any Anti-Corruption Law, Anti-Money Laundering Laws or Sanctions, incurred in connection with the Transaction Documents; (xix) any Contractual Dilution;
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26 Receivables Sale Agreement 753303507 23728593 expense, direct any Originator to notify the Obligors of Receivables of the ownership interest of the Buyer under this Agreement. (c) If, following the occurrence and during the continuance of a Termination Event or an Amortization Event, any of the Originators fails to perform any of its obligations hereunder, the Buyer (or its assigns) may (but shall not be required to) perform, or cause performance of, such obligations, and the Buyer’s (or such assigns’) costs and expenses incurred in connection therewith shall be payable by the Originators as provided in Section 6.2. Each of the Originators irrevocably authorizes the Buyer (and its assigns) at any time and from time to time in the sole discretion of the Buyer (or its assigns), and appoints the Buyer (and its assigns) as its attorney(ies)-in-fact, to act on behalf of such Originator to file on behalf of such Originator, as debtor, all financing statements, continuation statements and amendments thereto or assignments thereof, and execute such other instruments or notices, as may be reasonably necessary or desirable in the Buyer’s (or its assigns’) sole discretion to perfect and to maintain the perfection and priority of the interest of the Buyer in the Originator Collateral. This appointment is coupled with an interest and is irrevocable. (d) (i) Each of the Originators acknowledges and agrees that it is not authorized to, and will not, file financing statements or other filing or recording documents with respect to the Receivables Assets (including any amendments thereto, or continuation or termination statements thereof), without the express prior written approval by the Administrative Agent (as the Buyer’s assignee), consenting to the form and substance of such filing or recording document, and (ii) each of the Originators hereby approves, authorizes and ratifies any filings or recordings made by or on behalf of the Administrative Agent (as the Buyer’s assignee) in connection with the perfection of the ownership or security interests in favor of the Buyer or the Administrative Agent (as the Buyer’s assignee). Section 7.4. Set-off. The remedies herein provided are cumulative and not exclusive of any remedies provided by Law. Without limiting the foregoing, Columbus and each Originator hereby authorize the Buyer, the Administrative Agent and each Lender (collectively, the “Set-off Parties”), at any time and from time to time, to the fullest extent permitted by Law, to set off, against any obligations of Columbus or such Originator to such Set-off Party arising in connection with the Transaction Documents (including, without limitation, amounts payable pursuant to Section 6.1) that are then due and payable or that are not then due and payable but have accrued, any and all deposits (general or special, time or demand, provisional or final) at any time held by, and any and all indebtedness at any time owing by, any Set-off Party to or for the credit or the account of Columbus or such Originator. Section 7.5. Confidentiality. The parties agree to be bound by the provisions of Section 12.6 of the Credit and Security Agreement with the same force and effect as if fully set forth herein. Section 7.6. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO) EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE BUYER’S OWNERSHIP
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27 Receivables Sale Agreement 753303507 23728593 INTEREST AND SECURITY INTEREST IN THE COLLATERAL OR REMEDIES HEREUNDER IN RESPECT THEREOF ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. Section 7.7. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT, AND EACH OF THE PARTIES HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. Section 7.8. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY ORIGINATOR PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER. Section 7.9. Integration; Xxxxxxx Effect; Assignability; Survival of Terms. (a) This Agreement and each other Transaction Document contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all prior oral or written understandings. (b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns (including any trustee in bankruptcy). No Originator may assign any of its rights hereunder or any interest herein without the prior written consent of the Buyer, the Administrative Agent and each Lender, except as otherwise herein specifically provided. (c) 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 terminated in accordance with its terms; provided, however, that the rights and remedies with respect to (i) any breach of any representation and warranty made by any Originator pursuant to Article II, (ii) the indemnification and payment provisions of Article VI, and Sections 7.5 through and including 7.11 shall be continuing and shall survive any termination of this Agreement. (d) Each Originator acknowledges that institutions providing financing pursuant to the Credit and Security Agreement may rely upon the terms of this Agreement. Each Originator acknowledges that the Buyer’s rights under this Agreement may be assigned to the Administrative Agent and the Lenders under the Credit and Security Agreement, consents to such assignments and to the exercise of those rights directly by the Administrative Agent to the extent permitted by the Credit and Security Agreement and acknowledges and agrees that the Administrative Agent, each Lender and each of their successors and assigns are express third-party beneficiaries of this Agreement.
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28 Receivables Sale Agreement 753303507 23728593 Section 7.10. Counterparts; Electronic Signatures; Severability; Section References. 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. To the fullest extent permitted by applicable Law, delivery of an executed counterpart of a signature page of this Agreement by telefacsimile or electronic image scan transmission (such as a “pdf” file) will be effective to the same extent as delivery of a manually executed original counterpart of this Agreement. Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Unless otherwise expressly indicated, all references herein to “Article”, “Section”, “Schedule” or “Exhibit” shall mean articles and sections of, and schedules and exhibits to, this Agreement. The words “execute,” “execution,” “signed,” “signature,” “delivery” and words of like import in or related to this Agreement, any other Transaction Document or any document, amendment, approval, consent, waiver, modification, information, notice, certificate, report, statement, disclosure, or authorization to be signed or delivered in connection with this Agreement or any other Transaction Document or the transactions contemplated hereby shall be deemed to include Electronic Signatures or execution in the form of an Electronic Record, and contract formations on electronic platforms approved by the Administrative Agent, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Each party hereto agrees that any Electronic Signature or execution in the form of an Electronic Record shall be valid and binding on itself and each of the other parties hereto to the same extent as a manual, original signature. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the parties of a manually signed paper which has been converted into electronic form (such as scanned into PDF format), or an electronically signed paper converted into another format, for transmission, delivery and/or retention. Without limiting the generality of the foregoing, each party hereto hereby (A) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders and any of the Columbus Parties, electronic images of this Agreement or any other Transaction Document (in each case, including with respect to any signature pages thereto) shall have the same legal effect, validity and enforceability as any paper original, and (B) waives any argument, defense or right to contest the validity or enforceability of the Transaction Documents based solely on the lack of paper original copies of any Transaction Documents, including with respect to any signature pages thereto. Section 7.11. Bankruptcy Petition. Each of the Originators covenants and agrees that, prior to the date that is one (1) year and one (1) day after the Final Payout Date, it will not institute against, or join any other Person in instituting against, the Buyer, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the Laws of the United States or any state of the United States.
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Receivables Sale Agreement YALE INDUSTRIAL PRODUCTS, INC., as an Originator By: __________________________________ Name: Xxxxxxx X. Xxxxxxxxx Title: Vice President and Treasurer COLUMBUS XXXXXXXX XXXXX, LLC, as the Buyer By: __________________________________ Name: Xxxxxxx X. Xxxxxxxxx Title: President DocuSign Envelope ID: DF212AB6-83AF-4121-8CB6-30AFA3105395
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I-1 Receivables Sale Agreement 753303507 23728593 Exhibit I Definitions This is Exhibit I to the Agreement (as hereinafter defined). As used in the Agreement and the Exhibits and Schedules thereto, capitalized terms have the meanings set forth in this Exhibit I (such meanings to be equally applicable to the singular and plural forms thereof). If a capitalized term is used in the Agreement, or any Exhibit or Schedule thereto, and is not otherwise defined therein or in this Exhibit I, such term shall have the meaning assigned thereto in the Credit and Security Agreement (hereinafter defined). The rules of construction set forth in Exhibit I of the Credit and Security Agreement are hereby incorporated by reference herein, mutatis mutandis. “Administrative Agent” has the meaning specified in the Preliminary Statements. “Agreement” has the meaning specified in the Preamble. “Available Cash” means, on any date of determination, cash available to the Buyer from any source that is not required to be paid to or set aside for the benefit of the Administrative Agent and the Lenders on such date under the Credit and Security Agreement. “Buyer” has the meaning specified in the Preamble. “Closing Date” has the meaning specified in the Preamble. “Columbus” has the meaning specified in the Preamble. “Contributed Receivables” has the meaning specified in Section 1.1(a). “Contributed Receivable Assets” has the meaning specified in Section 1.1(a). “Credit and Security Agreement” has the meaning specified in the Preliminary Statements. “Discount Factor” means a percentage calculated to provide the Buyer with a reasonable return on its investment in the Receivables after taking account of (i) the time value of money based upon the anticipated dates of collection of the Receivables and the cost to the Buyer of financing its investment in the Receivables during such period and (ii) the risk of nonpayment by the Obligors. Each of the Originators and the Buyer may agree from time to time and at any time with the prior written notice to the Administrative Agent to change the Discount Factor based on changes in one or more of the items affecting the calculation thereof; provided that any change to the Discount Factor shall take effect as of the commencement of a Calculation Period, shall apply only prospectively and shall not affect the Purchase Price payment made prior to the Calculation Period during which each of the Originators and the Buyer agree to make such change. As of the date of this Agreement, the Discount Factor is 1.50%. “Indemnified Amounts” has the meaning specified in Section 6.1. “Indemnified Part(y)(ies)” has the meaning specified in Section 6.1. “Initial Cutoff Date” means March 31, 2023.
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I-2 Receivables Sale Agreement 753303507 23728593 “Lenders” has the meaning specified in the Preliminary Statements. “Master Servicer” has the meaning specified in the Preamble. “Net Worth” means, as of the last Business Day of each Calculation Period preceding any date of determination, the excess, if any, of (i) the aggregate Outstanding Balance of the Receivables at such time, over (ii) the sum of (A) the Aggregate Principal outstanding at such time under the Credit and Security Agreement, plus (B) the aggregate accrued and outstanding Interest and fees at such time, plus (C) the aggregate outstanding principal balance of the Subordinated Loans (including any Subordinated Loan proposed to be made on the date of determination), plus (D) without duplication, the aggregate accrued and unpaid other Borrower Obligations at such time. “Originator(s)” has the meaning specified in the Preamble. “Originator Collateral” has the meaning specified in Section 1.6. “Purchase Price” means, with respect to any sale of Purchased Receivables by an Originator hereunder, the aggregate price to be paid by the Buyer to the applicable Originator in accordance with Section 1.2 for the Receivables Assets being sold to the Buyer, which price shall equal on any date (i) the product of (A) the Outstanding Balance of the Purchased Receivables on such date, multiplied by (B) one minus the Discount Factor in effect on such date, minus (ii) any Purchase Price Credits to be credited against the Purchase Price otherwise payable in accordance with Section 1.2. “Purchase Price Credit” has the meaning specified in Section 1.3. “Purchased Receivables” has the meaning specified in Section 1.1(a). “Purchased Receivables Assets” has the meaning specified in the Section 1.1(a). “Receivables Assets” has the meaning specified in Section 1.1(a). “Related Security” means, with respect to any Receivable: (i) all right, title and interest (if any) in the goods, the sale of which gave rise to such Receivable, and any and all insurance contracts with respect thereto, (ii) all other Security Interests or Liens and property subject thereto from time to time, if any, purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all financing statements and security agreements describing any collateral securing such Receivable, (iii) all guaranties, letters of credit, insurance and other supporting obligations, agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise, (iv) all service contracts and other contracts and agreements associated with such Receivable, (v) all Records related to such Receivable,
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I-3 Receivables Sale Agreement 753303507 23728593 (vi) all of the applicable Originator’s right, title and interest in each Borrower Lock-Box and each Collection Account, and (vii) all proceeds of any of the foregoing. “Required Capital Amount” means, as of any date of determination, $2,750,000. “Required Contributed Amount” means, as of any date of determination, the amount, if any, by which the Purchase Price for all Receivables to be acquired on such date exceeds the sum of (a) the funds available to the Buyer under the Credit and Security Agreement on such date, and (b) the amount available to be borrowed by the Buyer as Subordinated Loans hereunder on such date. “Review” has the meaning specified in Section 4.1(d). “Senior Claim” has the meaning specified in each Subordinated Note. “Senior Claimants” has the meaning specified in each Subordinated Note. “Subordination Provisions” has the meaning specified in each Subordinated Note. “Subordinated Loan” has the meaning specified in Section 1.2(b). “Subordinated Note” means a promissory note in substantially the form of Exhibit III hereto as more fully described in Section 1.2, as the same may be amended, restated, supplemented or otherwise modified from time to time. “Termination Date” means, as to each Originator, the earliest to occur of (i) the Facility Termination Date (as defined in the Credit and Security Agreement) and (ii) the Business Day specified in a written notice from the Administrative Agent as the Buyer’s assignee to such Originator following the occurrence of any Termination Event. “Termination Event” has the meaning specified in Section 5.1. “Unmatured Termination Event” means an event which, with the passage of time or the giving of notice, or both, could constitute a Termination Event. All accounting terms not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9.