1
EXHIBIT 10.31
THERMADYNE RECEIVABLES SECURITIZATION - PROGRAM
CLOSING INDEX
Closing-January 31, 2000
Receivables Participation Agreement dated as of January 31, 2000 between
Thermadyne Receivables, Inc., as the Transferor and Bankers Trust Company,
as Trustee .............................................................................. 1
(a) Annex I - Defined Terms
(b) Schedule 4.01(ix) Certificates of Good Standing
(c) Schedule 4.01(xv) Description of Software Licensing Arrangement
(d) Exhibit 5.01(p)--Names and Addresses of Lock box Banks
(e) Exhibit 6.01(c)--Agreed Upon Procedures
(f) Exhibit 6.01(d)--Form of Officer's Certificates
(g) Exhibit 6.08--Location of Records
(h) Exhibit 8.01--Form of Lockbox Agreement
(i) Exhibit 8.03(b)--Settlement Statement Certificate
(j) Exhibit 10.08(a)--Form of Certificate (Including Legends)
(k) Exhibit 10.09(i)(2)--Form of Transferee Reg S Certification
(l) Exhibit 10.09(b)(i)(B)--Form of Accredited Investor Letter
(m) Exhibit 10.09(b)(i)(C)--Form of Transferor Letter (144A)
(n) Exhibit 10.09(i)(1)--Form of Owner Reg S Certification
(o) Exhibit 10.09(i)(2)--Form of Transferee of Reg S Certification
(p) Exhibit 10.09(i)(3)- Form of Depository Reg S Certification
(q) Exhibit 10.09(i)(4)--Form of Transfer Certificate for Exchange or
Transfer from 144A Certificate to Regulation S Global Certificate
(r) Exhibit 10.09(i)(5)--Form of Instruction for Exchange from Regulation S
Global Certificate to 144A Global Certificate
Executed Certificates dated as of January 31, 2000 ...................................... 2
(a) Reg - S
(b) 144A
Security Agreement dated as of January 31, 2000, between Thermadyne Receivables,
Inc. and Bankers Trust Company .......................................................... 3
Receivables Purchase and Sale Agreement dated as of January 31, 2000
among Certain Entities, as Sellers and Xxxxxx Equipment Company, as
Purchaser ............................................................................... 4
(a) Annex I-Defined Terms
(b) Schedule 3.01 (h)-Location of Records and Computer Software
1
2
(c) Schedule 3.01(i)-List of Lockbox Banks
(d) Schedule 3.01(j)-Names Under Which Sellers have Conducted Business
(e) Schedule 3.01(l)-List of Computer Programs
(f) Exhibit A-Form of Seller Purchase Price Note
(g) Exhibit B-Credit and Collection Policy
(h) Exhibit C-Form of Assumption Agreement.
Seller Purchase Price Notes dated as of January 31, 2000 ................................. 5
Receivables Purchase and Sale Agreement dated as of January 31, 2000 among
Xxxxxx Equipment Company, as Seller and Servicer, Thermadyne Receivables, Inc.,
as Purchaser and Thermadyne Mfg. LLC, as Guarantor ....................................... 6
(a) Annex I-Defined Terms
(b) Schedule 3.01(h)-Location of Records and Computer Software
(c) Schedule 3.01(i)-List of Lockbox Banks
(d) Schedule 3.01(j)-Names Under Which Xxxxxx have Conducted Business
(e) Schedule 3.01(l)-List of Computer Programs
(f) Exhibit A-Form of Xxxxxx Purchase Price Note
(g) Exhibit B-Credit and Collection Policy
(h) Exhibit C-1-Form of Daily Report (Pre-Liquidation Period)
(i) Exhibit C-2-Form of Daily Report (Post-Liquidation Period)
(j) Exhibit D-1-Form of Settlement Statement (Pre-Liquidation Period)
(k) Exhibit D-2-Form of Settlement Statement (Post-Liquidation Period)
(l) Exhibit E-Form of Authorized Officer's Certificate
Xxxxxx Purchase Price Note dated as of January 31, 2000 .................................. 7
Placement Agreement dated as of January 31, 2000 among Thermadyne Mfg. LLC,
Thermadyne Receivables Inc. and ABN AMRO Inc ............................................. 8
Secretary Certificates regarding incumbency, organic documents, authorizing
resolutions .............................................................................. 9
(a) TRI
(b) Xxxxxx
(c) Tweco Products Inc.
(d) Thermal Dynamics Corporation
(e) Stoody's Company
(f) Thermadyne International Corporations
(g) Xxxxxx Gas Systems, Inc.
(h) Thermal Arc, Inc.
(i) C&G Systems, Inc.
Officer's Certificate of TRI regarding Article V of Receivables Participation
Agreement ............................................................................... 10
2
3
Officer's Certificate regarding Article III of Receivables Participation Agreement ...... 11
(a) Xxxxxx
(b) Tweco Products Inc.
(c) Thermal Dynamics Corporation
(d) Stoody's Company
(e) Thermadyne International Corporations
(f) Xxxxxx Gas Systems, Inc.
(g) Thermal Arc, Inc.
(h) C&G Systems Inc.
First Tier Uniform Commercial Code financing statements and assignments* ................ 12
(a) Uniform Commercial Code financing statements naming Tweco Products, Inc.
as Debtor, Xxxxxx Equipment Co. as Secured Party and Thermadyne
Receivables, Inc. as Assignee, with Exhibit A attached thereto and
assignments naming Tweco Products, Inc. as Debtor and Thermadyne
Receivables, Inc. as Assignee filed with: Delaware, Missouri,
California, and Kansas.
(b) Uniform Commercial Code financing statements naming Thermal Dynamics
Corporation as Debtor, Xxxxxx Equipment Co. as Secured Party and
Thermadyne Receivables, Inc. as Assignee, with Exhibit A attached
thereto and assignments naming Thermal Dynamics Corporation as Debtor
and Thermadyne Receivables, Inc. as Assignee filed with: Delaware,
Missouri, and New Hampshire.
(c) Uniform Commercial Code financing statements naming Stoody Co. as
Debtor, Xxxxxx Equipment Co. as Secured Party and Thermadyne
Receivables, Inc. as Assignee, with Exhibit A attached thereto and
assignments naming Stoody Co. as Debtor and Thermadyne Receivables, Inc.
as Assignee filed with: Delaware, Missouri, California, and Kentucky.
(d) Uniform Commercial Code financing statements naming Thermadyne
International Corp. as Debtor, Xxxxxx Equipment Co. as Secured Party and
Thermadyne Receivables, Inc. as Assignee, with Exhibit A attached
thereto and assignments naming Thermadyne International Corp. as Debtor
and Thermadyne Receivables, Inc. as Assignee filed with: Missouri and
Kansas.
(e) Uniform Commercial Code financing statements naming Xxxxxx Gas Systems,
Inc. as Debtor, Xxxxxx Equipment Co. as Secured Party and Thermadyne
Receivables,
----------
* All assignments and the Financing Statements for the Ohio Secretary of
State and the Illinois Secretary of State have been omitted.
3
4
Inc. as Assignee, with Exhibit A attached thereto and assignments naming
Xxxxxx Gas Systems, Inc. as Debtor and Thermadyne Receivables, Inc. as
Assignee filed with: Delaware, Missouri, Pennsylvania.
(f) Uniform Commercial Code financing statements naming Thermal Arc, Inc. as
Debtor, Xxxxxx Equipment Co. as Secured Party and Thermadyne
Receivables, Inc. as Assignee, with Exhibit A attached thereto and
assignments naming Thermal Arc, Inc. as Debtor and Thermadyne
Receivables, Inc. as Assignee filed with: Delaware, Missouri and Ohio.
(h) Uniform Commercial Code financing statements naming C&G Systems, Inc. as
Debtor, Xxxxxx Equipment Co. as Secured Party and Thermadyne
Receivables, Inc. as Assignee, with Exhibit A attached thereto and
assignments naming C&G Systems, Inc. as Debtor and Thermadyne
Receivables, Inc. as Assignee filed with: Illinois, Missouri and New
Hampshire.
Uniform Commercial Code financing statements naming Xxxxxx Equipment Co. as
Debtor, Thermadyne Receivables Inc. as Secured Party and Bankers Trust Company
as Assignee, with Exhibit A attached thereto filed with: Delaware, Missouri,
Pennsylvania and Texas .................................................................. 13
Uniform Commercial Code financing statements naming Thermadyne Receivables Inc.
as Debtor and Bankers Trust Company as Secured Party, with Exhibit A attached
thereto filed with: Delaware and Missouri ............................................... 14
Weil, Gotshal & Xxxxxx LLP Opinion re: True Sale, Corporate Matters and Federal Tax
Issues .................................................................................. 15
Sonnenschein, Nath & Xxxxxxxxx Opinion re: Corporate and State Taxes .................... 16
Rating Letter of Standard & Poor's ...................................................... 17
Comfort Letter from Ernst & Young LLP ................................................... 18
Xxxxx, Xxxxx & Xxxxx Opinion ............................................................ 19
Lockbox Agreement ....................................................................... 20
Software License Agreements/Assignments ................................................. 21
Management Agreement .................................................................... 22
DTC Letter of Representation ............................................................ 23
4
5
TAB 1
6
================================================================================
RECEIVABLES PARTICIPATION AGREEMENT
Dated as of January 31, 2000
between
THERMADYNE RECEIVABLES, INC.
as the Transferor,
and
BANKERS TRUST COMPANY,
as Trustee
================================================================================
7
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Definitions ........................................ 1
SECTION 1.02. Accounting Terms ........................................... 2
SECTION 1.03. Other Terms ................................................ 2
SECTION 1.04. Computation of Time Periods ................................ 2
ARTICLE II
THE RECEIVABLES PROGRAM
SECTION 2.01. The Program ................................................ 2
SECTION 2.02. Initial Acquisition of Certificates ........................ 3
SECTION 2.03. Participation Interests; Reinvestment ...................... 3
SECTION 2.04. Tax Treatment .............................................. 4
ARTICLE III
INTEREST, FEES AND OTHER PAYMENT TERMS
SECTION 3.01. Interest ................................................... 4
SECTION 3.02. Fees ....................................................... 5
SECTION 3.03. Payments and Computations .................................. 5
SECTION 3.04. Prepayment; Early Termination Amounts ...................... 6
SECTION 3.05. Payment on the Maturity Date ............................... 6
SECTION 3.06. Limited Recourse ........................................... 7
ARTICLE IV
CONDITIONS OF PURCHASES
SECTION 4.01. Conditions Precedent to Acquisition of the
Certificates ............................................... 7
SECTION 4.02. Additional Conditions Precedent to the
Acquisition of the Certificates ............................ 10
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of TRI ...................... 10
i
8
ARTICLE VI
AFFIRMATIVE COVENANTS
SECTION 6.01. Reports; Other Information ................................ 16
SECTION 6.02. Inspection ................................................ 18
SECTION 6.03. Books and Records of TRI .................................. 18
SECTION 6.04. Corporate Existence ....................................... 19
SECTION 6.05. Compliance with Laws ...................................... 19
SECTION 6.06. Obligations ............................................... 19
SECTION 6.07. Program Documents ......................................... 19
SECTION 6.08. Location of Records ....................................... 19
SECTION 6.09. Separate Corporate Existence .............................. 19
SECTION 6.10. Taxes ..................................................... 21
ARTICLE VII
NEGATIVE COVENANTS
SECTION 7.01. Liens; Sales of Transferred Assets ........................ 22
SECTION 7.02. Indebtedness .............................................. 22
SECTION 7.03. Minimum Net Worth ......................................... 22
SECTION 7.04. Guarantees ................................................ 22
SECTION 7.05. Limitation on Investments ................................. 22
SECTION 7.06. Limitation on Transactions with Affiliates ................ 22
SECTION 7.07. Program Documents; Credit and
Collection Policy ......................................... 23
SECTION 7.08. Charter and Bylaws ........................................ 23
SECTION 7.09. Lines of Business ......................................... 24
SECTION 7.10. Investor Accounts ......................................... 24
SECTION 7.11. Lockbox Banks; Change in Payment Instructions to
Obligors .................................................. 24
SECTION 7.12. Accounting Treatment ...................................... 24
ARTICLE VIII
ADMINISTRATION AND COLLECTION OF RECEIVABLES
SECTION 8.01. Collection of Receivables ................................. 24
SECTION 8.02. Designation of Servicer and Collection Agent .............. 27
SECTION 8.03. Duties of the Collection Agent ............................ 28
SECTION 8.04. Responsibilities of TRI ................................... 30
SECTION 8.05. Further Action Evidencing Transfers ....................... 31
ii
9
SECTION 8.06. Application of Collections ................................ 31
SECTION 8.07. Administration of Program Accounts Prior to the
Liquidation Period ........................................ 32
SECTION 8.08. Administration of Program Accounts During the
Liquidation Period ........................................ 35
SECTION 8.09. Remittances and Investment of Funds ....................... 38
SECTION 8.10. No Recourse for Credit Problems ........................... 38
ARTICLE IX
TERMINATION OF REINVESTMENTS; INDEMNIFICATION
SECTION 9.01. Termination of Reinvestment ................................ 38
SECTION 9.02. Indemnities by TRI ......................................... 40
ARTICLE X
THE TRUSTEE; THE CERTIFICATES
SECTION 10.01. Authorization and Action .................................. 43
SECTION 10.02. Nature of Trustee's Duties ................................ 44
SECTION 10.03. UCC Filings; Enforcement .................................. 44
SECTION 10.04. Trustee's Reliance, Etc. .................................. 44
SECTION 10.05. Trustee and Affiliates .................................... 46
SECTION 10.06. Purchase Decision ......................................... 47
SECTION 10.07. Successor Trustee ......................................... 47
SECTION 10.08. The Certificates .......................................... 48
SECTION 10.09. Registration of the Certificates .......................... 50
SECTION 10.10. Mutilated, Destroyed, Lost or Stolen
Certificates .............................................. 57
SECTION 10.11. Persons Deemed Owners ..................................... 58
SECTION 10.12. Paying Agent .............................................. 59
SECTION 10.13. Access to List of Investors ............................... 59
SECTION 10.14. Merger or Consolidation of Trustee ........................ 59
SECTION 10.15. Enforcement of Claims Without Possession of
the Certificates .......................................... 59
SECTION 10.16. Global Certificates ....................................... 60
SECTION 10.17. Notices to Clearing Agency ................................ 62
SECTION 10.18. Letter of Representations ................................. 62
SECTION 10.19. Exchange of the Certificates .............................. 62
SECTION 10.20. CUSIP Numbers ............................................. 63
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Amendments, Etc. .......................................... 64
SECTION 11.02. No Waiver; Remedies ....................................... 65
SECTION 11.03. Successors and Assigns .................................... 65
iii
10
SECTION 11.04. GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF PERSONAL SERVICE AND VENUE; WAIVER OF
JURY TRIAL ................................................ 65
SECTION 11.05. Notices ................................................... 66
SECTION 11.06. Survival of Agreement ..................................... 67
SECTION 11.07. Expenses; Indemnification ................................. 67
SECTION 11.08. No Recourse to Stockholders, Etc. ......................... 68
SECTION 11.09. Acceptance of Terms ....................................... 68
SECTION 11.10. Execution in Counterparts; Severability ................... 68
SECTION 11.11. Entire Agreement .......................................... 68
SECTION 11.12. Tax Returns ............................................... 68
iv
11
ANNEXES, EXHIBITS, AND SCHEDULES
Annex I - Defined Terms
Schedule 4.01(ix) - Good Standing Certificates
Schedule 4.01(xv) - Description of Software Licensing Arrangements
Exhibit 4.01(xix) - Year 2000 Readiness Certificate
Exhibit 5.01(p) - Names and Addresses of Lock Banks
Exhibit 6.01(c) - Agreed Upon Procedures
Exhibit 6.01(d) - Certificates
Exhibit 6.08 - Location of Records
Exhibit 8.01 - Form of Lockbox Agreement
Exhibit 8.03(b) - Settlement Statement Certificate
Exhibit 10.08(a) - Form of Certificate (Including Legends)
Exhibit 10.09(b)(i)(B) - Form of Accredited Investor Letter
Exhibit 10.09(b)(i)(C) - Form of Transferor Letter (144A)
Exhibit 10.09(i)(1) - Form of Owner Reg S Certification
Exhibit 10.09(i)(2) - Form of Transferee Reg S Certification
Exhibit 10.09(i)(3) - Form of Depositary Reg S Certification
Exhibit 10.09(i)(4) - Form of Transfer Certificate for
Exchange or Transfer from 144A
Certificate to Regulation S Global
Certificate
Exhibit 10.09(i)(5) - Form of Instruction for Exchange from
Regulation S Global Certificate to
144A Global Certificate
v
12
RECEIVABLES PARTICIPATION AGREEMENT
THIS RECEIVABLES PARTICIPATION AGREEMENT (this "Agreement"), dated as of
January 31, 2000, is entered into by and among Thermadyne Receivables, Inc., a
Delaware corporation (hereinafter "TRI"), and Bankers Trust Company, a national
banking association, as trustee (in such capacity, the "Trustee").
WITNESSETH:
WHEREAS, TRI is a direct wholly-owned subsidiary of Xxxxxx Equipment
Company, a Delaware corporation ("Xxxxxx"); and
WHEREAS, Xxxxxx is contemporaneously herewith entering into an agreement
pursuant to which it will acquire accounts receivable and certain related assets
from Sellers; and
WHEREAS, the regular business activities of TRI consist of the purchase of
accounts receivable and certain related assets from Xxxxxx (including accounts
receivable and related assets acquired by Xxxxxx from Sellers) and other
activities incidental thereto; and
WHEREAS, TRI, in order to finance its purchases of receivables and other
assets from Xxxxxx, has entered into this Agreement whereby there will be
issued, subject to the terms and conditions set forth herein, variable rate
receivables-backed certificates (the "Certificates") which shall evidence
Participation Interests in the accounts receivable and other assets purchased by
TRI from Xxxxxx;
WHEREAS, the Certificates will be acquired by the Investors subject to the
terms and conditions hereof;
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Definitions. For all purposes of this Agreement,
except as otherwise specifically provided herein, capitalized terms used in this
Agreement without definition (including its preamble and recitals) shall have
the meanings
1
13
ascribed to such terms in Annex I hereto, the terms of which are incorporated by
reference herein and made a part hereof.
SECTION 1.02. Accounting Terms. Under this Agreement, all accounting terms
not specifically defined herein shall be interpreted, all accounting
determinations made and all financial statements prepared in accordance with
GAAP.
SECTION 1.03. Other Terms. All other undefined terms contained in this
Agreement shall, unless the context indicates otherwise, have the meanings
provided for by the UCC to the extent the same are used or defined therein. The
words "herein," "hereof," and "hereunder" and other words of similar import
refer to this Agreement as a whole, including the exhibits and schedules hereto,
as the same may from time to time be amended or supplemented and not to any
particular section, subsection, or clause contained in this Agreement, and all
references to Sections, Exhibits and Schedules shall mean, unless the context
clearly indicates otherwise, the Sections hereof and the Exhibits and Schedules
attached hereto, the terms of which Exhibits and Schedules are hereby
incorporated into this Agreement. Whenever appropriate, in the context, terms
used herein in the singular also include the plural, and vice versa.
SECTION 1.04. Computation of Time Periods. 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
mean "to but excluding."
ARTICLE II
THE RECEIVABLES PROGRAM
SECTION 2.01. The Program. Subject to the terms and conditions hereinafter
set forth, TRI hereby assigns, transfers and conveys to the Trustee (in its
capacity as representative of, and trustee for, the Investors), with such
limited recourse as is provided herein, Participation Interests in (i) all
Receivables and Related Security now or hereafter existing or acquired from time
to time by TRI at any time prior to the Termination Date (including any interest
or finance charges relating thereto which accrue after the Termination Date),
(ii) all Collections and other moneys due or to become due with respect to the
foregoing (including, without limitation, all funds from time to time on deposit
in each of the Program Accounts and all funds from time to time on deposit in
each of the Lockbox Accounts representing Collections or other proceeds of the
foregoing and, in each case, all certificates and instruments, if any, from time
to time evidencing such funds, all investments made with such funds, all
2
14
claims thereunder or in connection therewith and all interest, dividends,
monies, instruments, securities and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the foregoing) (iii) all rights and interests of TRI in the Program Documents
(other than this Agreement), and (iv) all proceeds of the foregoing
(collectively, the "Transferred Assets"). The Trustee shall hold the
Transferred Assets in trust for the benefit of the holders of the Certificates
and the Obligations, subject to the terms of this Agreement. Such Participation
Interests shall be evidenced by the Certificates issued hereunder and placed,
subject to certain terms and conditions set forth in the Placement Agreement, by
ABN AMRO Incorporated on behalf of TRI to the Investors. The foregoing
assignment, transfer and conveyance does not constitute and is not intended to
result in the creation or assumption by any Investor or the Trustee of any
obligation of TRI, the Servicer, Xxxxxx, any Seller or any other Person in
connection with the Transferred Assets or any agreement relating thereto, or of
any other obligations of TRI.
SECTION 2.02. Initial Acquisition of Certificates. Subject to the terms and
conditions of this Agreement, $50,000,000 of the Certificates will be issued on
the Effective Date. Additional Certificates may be issued as provided in Section
10.8.
SECTION 2.03. Participation Interests; Reinvestment.
(a) The Participation Interests shall be initially computed as of the
opening of business of TRI on the Effective Date. Thereafter until the
Termination Date, such Participation Interests shall be automatically
recomputed as of the close of business of TRI on each Business Day. The
Participation Interests shall become zero when the Invested Amount, all
Interest thereon and all other amounts owing to the Investors and the
Trustee shall have been paid in full. Each Participation 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. On each day prior to the Termination
Date, the Trustee shall (subject to the order of application of payments
required under Article VIII) remit to TRI, by wire transfer of immediately
available funds, all Available Cash (other than Available Cash required to
be transferred to the Excess Funding Account or the Prepayment Account
pursuant to Section 8.07). To the extent that such Available Cash includes
Collections in respect of the Participation Interests, each such remittance
shall constitute consideration for the purchase of new Participation
Interests.
3
15
(b) Certain provisions of this Agreement require a portion of
particular funds to be allocated or attributed to the Participation
Interests. Such portion shall be calculated by multiplying the
Participation Interests (collectively expressed as a percentage) by the
total amount of such funds. The portion of such funds allocable or
attributable to the Transferor Interest shall be the total amount of such
funds minus the portion of such funds attributable to the Participation
Interest. All amounts allocated or attributable to the Participation
Interests (including without limitation amounts allocated or attributed
pursuant to Sections 8.07 and 8.08) shall be held by the Trustee in trust
for the Investors in accordance with, pending distribution of such funds
pursuant to, Sections 8.08(d), 8.08(e) and 8.09.
SECTION 2.04. Tax Treatment. The parties hereto have entered into this
Agreement with the intention that the Certificates will qualify under applicable
tax law and for tax purposes as Indebtedness secured by the Receivables and not
as an equity interest in a joint venture with TRI or an association taxable as a
corporation. TRI, the Trustee and the Investors, by purchase of their interest
in any Certificate, agree to treat the Certificates for purposes of federal,
state and local income or franchise taxes, and any other tax imposed on or
measured by income, as Indebtedness so secured by such security interest. The
parties hereto agree that the terms of this Agreement and the Certificates shall
be interpreted consistently with their intention that the Certificates
constitute such Indebtedness for the purposes described in this Section and they
will not take any action contrary to such characterization.
ARTICLE III
INTEREST, FEES AND OTHER PAYMENT TERMS
SECTION 3.01. Interest.
(a) Interest shall accrue for each Fixed Period on the Invested Amount
outstanding during such Fixed Period (measured as of each day in such
period) at a rate per annum equal to the LIBO Rate for such Fixed Period
plus the Applicable Margin. Interest shall be computed on the basis of the
actual number of days elapsed during such Fixed Period (including the first
day thereof but excluding the day of payment) over a year of 360 days.
(b) Accrued and unpaid Interest shall be payable in arrears on each
Settlement Date, which payment shall be made to Certificateholders listed
in the Certificate Register at
4
16
the opening of business on the first Business Day preceding such Settlement
Date, except as otherwise provided in this Agreement.
SECTION 3.02. Fees. TRI shall pay to the Trustee, for its own account in
its capacity as the Trustee, such fees (the "Trustee's Fees") as are specified
in that certain letter from the Trustee to TRI dated November 29, 1999. Such
fees shall be due and payable at the times specified in such letter.
SECTION 3.03. Payments and Computations.
(a) All amounts to be paid or deposited by TRI hereunder shall be paid
to the Trustee no later than 12:30 p.m. (New York City time) on the day
when due in Dollars in same day funds, and any payments received after such
time shall be deemed to have been made on the next Business Day. Whenever
any payments to be made hereunder shall be stated to be due on a day other
than a Business Day, the due date thereof shall be extended to the next
succeeding Business Day. The Trustee shall disburse amounts so received to
the Investors in same day funds (i) on the date received if such funds are
received prior to 12:30 p.m. (New York City time) and (ii) on the next
Business Day if such funds are received after 12:30 p.m. (New York City
time)
(b) TRI will, to the extent permitted by law, pay interest to the
Trustee on all amounts not paid or deposited when due hereunder at the LIBO
Rate in effect for the current Fixed Period plus such number of basis
points as is two hundred (200) basis points above the highest Applicable
Margin then applicable to any Certificates. Such interest shall be payable
immediately upon TRI's learning of such failure to pay or deposit (and in
any event upon demand by the Trustee). Such interest shall (i) be deemed
to constitute Collections, (ii) be deposited in the Collection Account and
(iii) be allocated as provided in Section 8.07 or 8.08 (as applicable).
(c) Each repayment of the Invested Amount shall be allocated among the
Investors in accordance with their respective Pro Rata Shares. Each payment
of Interest in respect of any Fixed Period shall be allocated among the
Investors according to the amount of Interest owed in respect of such Fixed
Period on the Certificates held by them.
5
17
SECTION 3.04. Prepayment; Early Termination Amounts.
(a) Upon thirty-five (35) days prior written notice to the Trustee,
TRI may prepay the outstanding principal amount of the Certificates in
whole or in part; provided, that any such notice shall specify the
Prepayment Amount and the Settlement Date on which such amount is to be
paid and any such partial prepayment shall be in a minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof. Any such
prepayment may be made only on a Settlement Date. On each Business Day
during the period beginning on the date on which TRI has given such notice
to the Trustee and ending on the Settlement Date specified in such notice,
Available Cash shall be transferred by the Trustee pursuant to Section
8.07(c) to the Prepayment Account established by the Trustee pursuant to
Section 8.01(a) until the Prepayment Amount has been transferred to the
Prepayment Account. On the Settlement Date specified in the prepayment
notice, funds on deposit in the Prepayment Account shall be transferred to
the Investors; provided, however, that if the amount on deposit in the
Prepayment Account shall be less than the Prepayment Amount, then no such
prepayment shall be made, such notice shall be deemed to be of no further
force and effect and all funds on deposit in the Prepayment Account with
respect to such prepayment shall be transferred to the Collection Account.
(b) If the principal amount of any Certificate is prepaid in whole or
in part prior to the Settlement Date in January, 2002, due to (i) the
Sellers or Xxxxxx giving notice as described in clause (vii) of the
definition of Liquidation Period, (ii) a Liquidation Event resulting from
the willful failure to perform its obligations under the Program Documents
by TRI, Thermadyne, Xxxxxx or any Seller, (iii) TRI's giving notice of
prepayment as described above, or (iv) any other prepayment not resulting
from the commencement of the Liquidation Period, then an Early Termination
Amount shall be payable in respect of such Certificate in accordance with
Section 8.07(d). No Early Termination Amount shall be payable in connection
with any total or partial prepayment occurring (x) on or after the
Settlement Date in January, 2002 or (y) for any reason other than as
described in clauses (i) through (iv).
SECTION 3.05. Payment on the Maturity Date. The outstanding principal
amount of the Certificates, together with any accrued and unpaid Interest
thereon and any other amount due and payable thereunder, shall be paid in full
on the Maturity Date.
6
18
SECTION 3.06. Limited Recourse. All payments owing by TRI under this
Agreement (including without limitation under Article III, Section 9.02 and
Section 11.07) shall be made solely from funds available for that purpose under
Sections 8.07 and 8.08, and shall be subject to Section 8.10. Any amount which
TRI does not pay pursuant to the operation of the preceding sentence shall not
constitute a claim (as defined in Section 101 of the Bankruptcy Code) against
TRI unless and until funds are available under Sections 8.07 and 8.08.
ARTICLE IV
CONDITIONS OF PURCHASES
SECTION 4.01. Conditions Precedent to Acquisition of the Certificates. The
obligation of the Trustee to authenticate the Certificates is subject to
satisfaction of the conditions precedent that the Trustee shall have received,
on or before the Effective Date, all of the following, each fully executed by
all signatories thereto and in form and substance satisfactory to the initial
Investors;
(i) this Agreement;
(ii) the Security Agreement;
(iii) the RPSAs;
(iv) a certificate of the Secretary or an Assistant Secretary of each
of TRI, Xxxxxx and each Seller certifying (A) as to the names and true
signatures of the officers authorized to sign the Program Documents to be
delivered by such party pursuant hereto or thereto (on which certificate
the Trustee and the Investors may conclusively rely until such time as the
Trustee shall receive a revised certificate meeting the requirements of
this clause (iv) (A)), (B) that attached thereto is a true and complete
copy of the certificate of incorporation and bylaws of such corporation as
in effect on the date of such certification and (C) that attached thereto
are true and complete copies of resolutions by such company's Board of
Directors approving the execution, delivery and performance of all Program
Documents to which such corporation is a party;
(v) a certificate executed by an Authorized Officer of TRI certifying
that, as of the Effective Date, all of the representations and warranties
contained in Article V hereof are true and accurate in all material
respects with the same
7
19
force and effect as though such representations and warranties had been
made as of such time;
(vi) a certificate executed by an Authorized Officer of each Seller
and Xxxxxx certifying that, as of the Effective Date, all of the
representations and warranties contained in Article III of each RPSA are
true and accurate in all material respects with the same force and effect
as though such representations and warranties had been made as of such
time;
(vii) a copy of TRI's Certificate of Incorporation, certified by the
Secretary of State of Delaware;
(viii) a copy of Victor's and each Seller's Certificate of
Incorporation, certified by the Secretary of State of such Person's
jurisdiction of incorporation;
(ix) certificates from the Secretaries of State in each State
identified on Schedule 4.01(ix) hereto as to the good standing of TRI, such
Seller or Xxxxxx;
(x) copies of UCC financing statements in form and substance
satisfactory to the initial Investors to be filed with the appropriate
offices deemed necessary to perfect (A) the transfers of interests in all
Transferred Assets under the RPSAs, (B) the transfers of interests in
Transferred Assets under this Agreement and (C) the grant of security under
the Security Agreement.
(xi) favorable opinions of: (A) Weil, Gotshal & Xxxxxx LLP, counsel
for Xxxxxx, Sellers and TRI, including, without limitation, opinions as to
(1) true sale and substantive consolidation issues relating to the
treatment of the Receivables purchased by TRI as property of TRI in the
event of a bankruptcy of Xxxxxx or a Seller, (2) corporate organization and
authority, enforceability and no conflict, (3) Federal securities law
issues relating to the sale of the Certificates, and (4) characterization
of the Investors' interests as Indebtedness and not as equity interests in
an association taxable as a corporation for Federal income tax purposes;
(B) Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, special Missouri counsel for Xxxxxx,
Sellers and TRI, including, without limitation, opinions as to (1)
corporate authority, enforceability and no conflict, (2) the perfection and
priority under the UCC of the Liens in the Receivables created in favor of
Xxxxxx, TRI, the Investors and the Trustee as described in clause (x)
above, and (3) characterization of the Investors' interests as Indebtedness
8
20
and not as equity interests in an association taxable as a corporation for
state tax purposes;
(xii) a rating letter from the Rating Agency indicating a rating with
respect to the Certificates of not less than AAA;
(xiii) letters from Ernst & Young LLP, in form and substance
satisfactory to the initial Investors, with respect to (A) the performance
of agreed upon procedures regarding the Receivables on an annual basis and
(B) information contained in the Offering Memorandum;
(xiv) the Lockbox Agreement executed by TRI, Trustee and each Lockbox
Bank;
(xv) such sublicenses and assignments as the initial Investors shall
require with regard to all computer and data recovery software licensed to
Thermadyne, Xxxxxx, any Seller and/or TRI and used in the collection of the
Receivables, all as described on Schedule 4.0l(xv) hereto;
(xvi) a pro forma balance sheet of TRI for the most recent year of
TRI, certified by an Authorized Officer of TRI;
(xvii) TRI shall have paid (i) all reasonable out-of-pocket fees and
expenses (including reasonable attorneys fees and expenses) of the Trustee
incurred in connection with the preparation, execution and delivery of this
Agreement and the other Program Documents and the purchase of the
Certificates and (ii) any and 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 or the other Program Documents;
(xviii) a copy of the Management Agreement and any other Company
Documents in effect on the Effective Date, certified by an Authorized
Officer of TRI;
(xix) an Officer's Certificate from the Servicer substantially in the
form of Exhibit 4.01(xix) hereof certifying the Year 2000 Readiness of the
Servicer;
(xx) the net worth of TRI inclusive of its interest in the Receivables
and the Related Security shall be not less than $10.0 million; and
(xxi) such other documents and instruments as the initial Investors
may reasonably request relating to the Program Documents and the
transactions contemplated hereby.
9
21
Funding by the Investors of the purchase price of the Certificates issued
hereunder shall constitute evidence of their satisfaction with the form and
substance of any item described above that is required to be satisfactory to
them.
SECTION 4.02. Additional Conditions Precedent to the Acquisition of the
Certificates. The obligation of the Trustee to authenticate the Certificates at
any time (including as contemplated by Section 10.08(b)) shall be subject to the
conditions precedent that on the date of such acquisition, before and after
giving effect thereto and to the application of any proceeds therefrom, the
following statements shall be true:
(i) the representations and warranties contained in Article V hereof
and all representations and warranties of Sellers and Xxxxxx in the RPSAs,
are true and accurate as of such date in all material respects with the
same force and effect as though such representations and warranties had
been made as of such time except for any representations and warranties
made as of a specific date, in which case such representations and
warranties shall have been true and accurate in all material respects as of
such specific date;
(ii) no event has occurred and is continuing, or would result from
such purchase, which constitutes a Liquidation Event or an Unmatured
Liquidation Event;
(iii) the Adjusted Invested Amount, after giving effect to the
purchase of the Certificates, shall not be greater than the Base Amount;
and
(iv) the Invested Amount, after giving effect to the purchase of the
Certificates, shall not be greater than the Program Amount.
The acceptance by TRI of the proceeds from the sale of the Certificates shall
constitute a representation and warranty by TRI that, on the date of the
purchase of the Certificates, the foregoing statements are true.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of TRI. TRI represents and
warrants that:
(a) Organization; Qualification. TRI is a corporation duly organized,
validly existing and in good standing under the laws of the state of
Delaware. TRI is duly qualified to
10
22
do business and is in good standing as a foreign corporation in each
jurisdiction where its ownership of property or the conduct of its business
requires such qualification, except where the failure to so qualify and be
in good standing could not reasonably be expected to have a Material
Adverse Effect.
(b) Corporate Authority. TRI has all corporate power and authority to
execute and deliver this Agreement and to sell Participation Interests
hereunder, to execute and deliver the other Program Documents to which it
is a party and to perform its obligations hereunder and thereunder and all
such action has been duly and validly authorized by all necessary corporate
proceedings on its part.
(c) Execution; Binding Effect. This Agreement and each of the other
Program Documents to which TRI is a party have been duly and validly
executed and delivered by TRI and constitute the legal, valid and binding
obligations of TRI enforceable in accordance with their respective terms,
except as such 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, including
principles of commercial reasonableness, good faith and fair dealing,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(d) Authorizations. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or regulatory
body or other Person is required for the due execution, delivery and
performance by TRI of this Agreement, any other Program Documents or any
other agreement, document or instrument delivered hereunder or thereunder
except for (i) the filing of financing statements pursuant to the UCC
required to perfect the security and/or ownership interests granted
hereunder, under the RPSAs and under the Security Agreement (all of which
filings have been duly made and are in full force and effect), and (ii)
other consents which have been duly obtained, except where the failure to
obtain or make any such authorization, approval, notice or filing,
individually or in the aggregate for all such failures, is not reasonably
likely to have a Material Adverse Effect. No transaction contemplated
hereby requires compliance with any bulk sales act or similar law.
(e) Absence of Conflicts. Neither the execution and delivery of this
Agreement or any other Program Documents to which TRI is a party, nor
consummation of the transactions herein or therein contemplated nor
performance of or
11
23
compliance with the terms and conditions hereof or thereof will (a) violate
any law, rule or regulation applicable to TRI or any of its properties, (b)
conflict with or result in a breach of or a default under (i) the
certificate of incorporation or bylaws of TRI, (ii) any agreement or
instrument to which TRI is a party or by which it or any of its properties
(now owned or hereafter acquired) may be subject or bound or (iii) any
order, writ, judgment, award, injunction or decree binding on or affecting
TRI or its property (now owned or hereafter acquired) or (c) except for
Liens created pursuant to the Program Documents, result in the creation or
imposition of any Lien in favor of any other party upon any property (now
owned or hereafter acquired) of TRI, which violation, conflict, breach or
Lien has a reasonable likelihood of having a Material Adverse Effect.
(f) Perfected Ownership Interest. Upon the acquisition of the
Certificates, the Investors and the Trustee will have a legal, valid,
perfected and enforceable Lien upon and security or ownership interest in
the Transferred Assets which Lien upon or interest in the Transferred
Assets is prior in right to all other Liens thereon (except Permitted
Liens) and such Transferred Assets shall not be subject to any other Liens
(except for Permitted Liens).
(g) Consideration for Purchases by TRI. TRI shall have given
reasonably equivalent value to Xxxxxx in consideration for the sale and
transfer to TRI of the Receivables and Related Security transferred under
the Second Tier RPSA and no such transfer shall have been made for or on
account of an antecedent debt owed by Xxxxxx to TRI.
(h) Accuracy of Information. The Offering Memorandum and all
certificates, reports, financial statements and similar writings furnished
by TRI to the Trustee or the Investors at any time pursuant to any
requirement of, or in response to any written request of any such party
under, this Agreement or any other Program Documents or any transaction
contemplated hereby or thereby, have been, and all such certificates,
reports, financial statements and similar writings hereafter furnished by
TRI to such parties will be, true and accurate in all material respects on
the date as of which any such certificate, report, financial statement or
similar writing was or will be delivered, and shall not omit to state any
material facts or any facts necessary to make the statements contained
therein not materially misleading in light of the circumstances under which
they were made; provided that the parties hereto understand and agree that
one (1) or more mistakes in the
12
24
calculation of the Net Eligible Receivables (or in information supplied for
purposes of such calculation) that causes the Net Eligible Receivables to
be overstated at any time by less than $150,000.00 (in the aggregate for
all such mistakes at such time by all parties) and such miscalculation,
after TRI becomes aware of it, shall continue uncorrected for a period not
exceeding two (2) days shall not be considered material for purposes of
this representation and warranty. Each Receivable represented to be an
Eligible Receivable in any Daily Report, Settlement Statement or other
report or writing furnished by Xxxxxx to the Trustee or the Investors
shall, in fact, satisfy the eligibility requirements set forth in the
definition of Eligible Receivable.
(i) Litigation. There are no actions, suits or proceedings at law or
in equity or by or before any governmental authority now pending or, to the
knowledge of TRI, threatened against or affecting TRI or any property or
rights of TRI which purport to challenge the legality, validity or
enforceability of this Agreement or any other Program Documents or which
may materially impair the ability of TRI to carry on business substantially
as now being conducted or which, if adversely determined, could reasonably
be expected to have a Material Adverse Effect.
(j) Governmental Regulations. TRI is not a "holding company", nor a
"subsidiary company" or "affiliate" thereof, within the meaning of the
Public Utility Holding Company Act of 1935, as amended, and TRI is not an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, or otherwise subject to any
other similar federal or state statute or regulation limiting its ability
to incur indebtedness.
(k) Margin Regulations. TRI is not engaged, principally or as one of
its important activities, in the business of extending credit for the
purpose of "purchasing" or "carrying" any "margin stock" (as each of the
quoted terms is defined or used in Regulation T, U or X). No part of the
proceeds of any of the Certificates has been used for so purchasing or
carrying margin stock or for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation T, U or X.
(l) Separate Corporate Existence. TRI is operated as an entity with
assets and liabilities distinct from those of Xxxxxx and any Affiliates
(other than TRI) thereof, and TRI hereby acknowledges that the Trustee and
the Investors are entering into the transactions contemplated by this
Agreement in reliance upon TRI's identity as a separate
13
25
legal entity from Xxxxxx, each Seller and each other Affiliate of TRI.
Since its incorporation, TRI has been (and will be) operated in such a
manner as to comply with the covenants set forth in Section 6.09.
(m) Investments. TRI has no Investments other than Permitted
Investments and does not own or hold, directly or indirectly, any capital
stock or equity security of, or any equity interest in, any Person.
(n) Program Documents. The Second Tier RPSA is the only agreement
pursuant to which TRI purchases Receivables or any other accounts
receivable. TRI has furnished to the Trustee true, correct and complete
copies of each Program Document to which TRI is a party, each of which is
in full force and effect. Neither TRI nor any Affiliate thereof is in
default of any of its obligations thereunder in any material respect. Upon
the Purchase of each Receivable pursuant to the Second Tier RPSA, TRI shall
be the lawful owner of, and have good title to, such Receivable and all
Purchased Assets relating thereto, free and clear of any Liens (except for
Liens created pursuant to the Program Documents and Permitted Liens). All
such Purchased Assets are purchased without recourse to Xxxxxx except as
described in the Second Tier RPSA. The Purchases of the Purchased Assets by
TRI constitute valid and true sales and transfers for consideration (and
not merely a pledge of such Purchased Assets for security purposes),
enforceable against the creditors of Sellers and Xxxxxx and no Purchased
Assets shall constitute property of Sellers or Xxxxxx.
(o) Business. Since its incorporation, TRI has conducted no business
other than (x) the purchase of Receivables and related assets from Xxxxxx
under the Second Tier RPSA and the sales of Participation Interests under
this Agreement; (y) the purchase of certain other Receivables from
Affiliates of Xxxxxx and the sale of the related participation interests
pursuant to certain agreements to which TRI is a party; and (z) such other
activities as are incidental to the foregoing.
(p) Lockbox Accounts. The names and addresses of all the Lockbox
Banks, together with the account numbers of the Lockbox Accounts, are set
forth on Exhibit 5.01(p) hereto (or as hereafter notified to the Trustee in
accordance with Section 7.11), and each Lockbox Bank has executed a Lockbox
Agreement. All Obligors have been instructed to remit payment on the
Receivables to a Lockbox Account or directly to the Collection Account.
14
26
(q) Ownership of TRI. One hundred percent (100%) of the outstanding
capital stock of TRI is directly owned (both beneficially and of record) by
Xxxxxx. Such stock is validly issued, fully paid and nonassessable and
there are no options, warrants or other rights to acquire capital stock
from TRI.
(r) Taxes. TRI has filed all tax returns and reports required by law
to have been filed by it (it being understood that certain of such filings
will be on a consolidated basis with Thermadyne and its Subsidiaries) other
than tax returns if a failure or delay in the filing thereof could not
reasonably be expected to have a Material Adverse Effect and has paid all
taxes, assessments and governmental charges thereby shown to be owing,
except any such taxes, assessments or charges (i) which are being
diligently contested in good faith by appropriate proceedings, (ii) for
which adequate reserves in accordance with GAAP shall have been set aside
on its books and (iii) with respect to which no Lien (other than Permitted
Liens) has been imposed upon any Receivables or Related Security.
(s) Locations. The principal place of business and chief executive
office of TRI are located at its address set forth in Exhibit 6.08 hereto
and the locations of the offices where the Records and computer software
are kept are listed on such exhibit (or at such other locations, notified
to the Trustee in accordance with Section 6.08, with respect to which all
action required by such Section 6.08 has been taken and completed).
(t) Other Names. During the past five (5) years, TRI has had no trade
names, fictitious names, assumed names, "doing business as" names or other
names under which it has done or is doing business.
(u) Solvency. On the Effective Date and on the date of each Purchase
hereunder, TRI; (i) is not "insolvent" (as such term is defined in Section
101(31)(A) of the Bankruptcy Code), (ii) is able to pay its debts as they
mature; and (iii) does not have unreasonably small capital for the business
in which it is engaged or for any business or transaction in which it is
about to engage.
15
27
ARTICLE VI
AFFIRMATIVE COVENANTS
TRI covenants and agrees that, until the Collection Date, unless the
Majority Investors shall otherwise consent in writing, it will:
SECTION 6.01. Reports; Other Information. Furnish or cause to be furnished
to the Trustee (together with such number of copies as the Trustee shall specify
in order to supply a copy to each Investor that has requested a copy, it being
understood that the Trustee will be providing a copy of each Settlement
Statement to each Investor) and, with respect to the reports described in
Section 6.01(c) and 6.01(f)(i), to the Rating Agency:
(a) Annual Reports. As soon as available and in any event within
one-hundred five (105) days after the end of each fiscal year of TRI
(beginning with its fiscal year ending December 31, 2000), a copy of the
unaudited annual statement of operations for such fiscal year and the
related balance sheet as at the end of such fiscal year, setting forth in
each case in comparative form the corresponding figures for the preceding
fiscal year and prepared in accordance with GAAP consistently applied
(except for such changes in application which are approved by TRI's
financial officer preparing such statements and disclosed therein);
(b) Quarterly Reports. As soon as available and in any event within
sixty (60) days after the end of the first three (3) fiscal quarters of
each fiscal year, a copy of (A) the unaudited statement of operations of
TRI for such fiscal quarter and for the period from the beginning of the
respective fiscal year to the end of such fiscal quarter; and (B) an
unaudited balance sheet of TRI as at the end of such fiscal quarter,
setting forth in each case in comparative form the corresponding figures
for the preceding fiscal year and all of the foregoing to be prepared in
accordance with GAAP consistently applied (except for such changes in
application which are approved by TRI's financial officer preparing such
statements and disclosed therein);
(c) Annual Accountants' Report. Within one-hundred five (105) days
after the end of each fiscal year of TRI (beginning with its fiscal year
ending December 31, 2000), a report by the Outside Accountants regarding
their performance of the procedures described in Exhibit 6.01(c); provided,
however, that if the Liquidation Period shall have occurred by reason of an
event described in clause (ii) (iii), (iv), (v) or (vi) of the definition
thereof, then the Majority Investors may direct TRI to replace such
16
28
accountants with another firm of nationally recognized independent
accountants selected by the Majority Investors and reasonably acceptable to
TRI. Each such report shall set forth the procedures performed, which
procedures shall be in compliance with the agreed upon procedures letter
delivered pursuant to Section 4.0l(xiii).
(d) Certificates. Contemporaneously with the furnishing of a copy of
the financial reports provided for in Section 6.01(a), a certificate dated
the date of delivery and signed by an Authorized Officer of TRI
substantially in the form of Exhibit 6.01(d) hereto, which certificate
shall state that said statement of operations and the balance sheet of TRI
fairly present the financial position and results of operations of TRI in
accordance with GAAP consistently applied (subject to normal year-end
adjustments) and that to the best of such officer's knowledge, no
Liquidation Event or Unmatured Liquidation Event has occurred during the
applicable reporting period or, if there is any such event, describing it
and the steps, if any, taken or being taken to cure it;
(e) Notice of Liquidation Event and Litigation. As soon as possible
and in any event within two (2) Business Days upon learning of the
occurrence of any of the following, written notice thereof, describing the
same and the steps being taken by TRI with respect thereto: (i) a
Liquidation Event or Unmatured Liquidation Event, or (ii) the institution
against TRI of, or any adverse determination in, any litigation,
arbitration proceeding or governmental proceeding;
(f) Reports from Other Parties. Promptly upon receipt thereof, copies
of (i) all financial statements and all monthly Settlement Statements
delivered to TRI by Xxxxxxx, Xxxxxx or the Servicer pursuant to the RPSAs
and (ii) (to the Trustee only) all reports and other written information
not specified above which are required to be delivered by Xxxxxxx, Xxxxxx
or the Servicer to TRI pursuant to the terms of the RPSAs; and
(g) Other Information. Promptly, from time to time, such other
information, documents, Records or reports respecting the Receivables or
the condition or operations, financial or otherwise, of TRI as the Trustee,
its permitted assigns or their respective agents or representatives may
from time to time reasonably request to protect the interests of the
Investors and the Trustee under or as contemplated by this Agreement or to
comply with its obligations under the other Program Documents.
17
29
SECTION 6.02. Inspection. At any time and from time to time during TRI's
normal business hours and upon reasonable written notice, permit the trustee,
its permitted assigns, or their respective agents or representatives, (i) to
examine and make copies of and abstracts from all Records in the possession or
under the control of TRI relating to the Receivables or the other Transferred
Assets, and (ii) to visit the offices and properties of TRI for the purpose of
examining such materials described in clause (i) above, and to discuss matters
relating to the Receivables or the other Transferred Assets, or TRI's
performance hereunder with any of the officers of TRI having knowledge of such
matters. TRI agrees that representatives from the Investors shall be permitted
to accompany the Trustee on any such inspection or visit and to participate in
any such discussion. TRI agrees to instruct its Outside Accountants to cooperate
with any reasonable request of the Trustee, its permitted assigns, or their
respective agents or representatives, in connection with the performance of such
accountants' routine verification procedures with respect to TRI's Receivables
or the other Transferred Assets. The Trustee, its assigns, agents or
representatives, shall also be permitted to verify the validity, amount or any
other matter relating to any Receivable; provided, however, that none of the
Trustee, the Investors nor their respective assigns shall, unless a Liquidation
Event has occurred and is continuing, notify any or all of the Obligors of the
Participation Interests sold hereunder or direct such Obligors to make payments
under any Receivables directly to the Investors or their designees. Without
limiting the foregoing, TRI shall, from time to time during TRI's normal
business hours, upon reasonable notice by the Trustee (or its permitted assigns,
or their respective agents, or representatives), permit certified public
accountants or other auditors acceptable to the Person making such request to
conduct a review of TRI's Records relating to the Transferred Assets and the
Program Documents; provided that unless a Liquidation Event or an Unmatured
Liquidation Event has occurred and is continuing such review shall not be
conducted more than twice during any calendar year and the scope of such review
shall be reasonable, taking into account market practice for similar
transactions. The costs and expenses of the first such review in any calendar
year shall be borne by the Servicer as part of its duties which are compensated
by the Servicer Fee and the costs and expenses of the second such review in any
calendar year shall be borne by the Investors ratably in accordance with their
Pro Rata Shares; provided that after the occurrence and during the continuation
of a Liquidation Event or an Unmatured Liquidation Event, all such reviews shall
be borne by the Servicer as part of its duties which are compensated by the
Servicer Fee.
SECTION 6.03. Books and Records of TRI. Maintain and implement
administrative and operating procedures (including,
18
30
without limitation, an ability to recreate Records in the event of the
destruction of the originals thereof), and keep and maintain, or cause to be
kept and maintained, all Records and other information reasonably necessary or
advisable for the collection of all Receivables (including, without limitation,
Records adequate to permit the daily identification of each Receivable and all
collections of and reductions or adjustments to each Receivable).
SECTION 6.04. Corporate Existence. Observe all corporate procedures
required by its certificate of incorporation and bylaws and do or cause to be
done all things necessary to preserve and maintain its corporate existence,
material rights, licenses, permits and franchises in each jurisdiction where the
ownership of property or conduct of its business requires such qualification,
except where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualifications could not reasonably be expected to
have a Material Adverse Effect.
SECTION 6.05. Compliance with Laws. Comply in all material respects with
all applicable laws, rules, regulations and orders with respect to it, its
business and properties, except for any such law, rule, regulation or order, the
failure to comply with which is not reasonably likely to have a Material Adverse
Effect.
SECTION 6.06. Obligations. Pay all its Indebtedness and obligations
promptly and in accordance with their terms, as well as all lawful claims for
labor, materials and supplies or otherwise which, if unpaid, might become a Lien
(other than a Permitted Lien) or charge upon such properties or any part
thereof.
SECTION 6.07. Program Documents. Comply in all material respects with the
terms of and employ the procedures outlined in and enforce the obligations of
Sellers and the Servicer under all of the Program Documents to which TRI is a
party.
SECTION 6.08. Location of Records. Keep its chief place of business and
chief executive office, and the offices where it keeps the Records (including
all original documents relating thereto) at the addresses specified in Exhibit
6.08 hereto, or, upon thirty (30) days prior written notice to the Trustee, at
such other locations in which all action required to maintain the perfection of
the Participation Interests and/or the Trustee's security interests in the
Transferred Assets shall have been taken and completed.
SECTION 6.09. Separate Corporate Existence. TRI shall take all reasonable
steps (including, without limitation, all steps that the Trustee may from time
to time reasonably request) to
19
31
maintain TRI's identity as a separate legal entity from each Seller and Xxxxxx
and to make it manifest to third parties that TRI is an entity with assets and
liabilities distinct from those of each Seller and Xxxxxx and each other
Affiliate of Xxxxxx. Without limiting the generality of the foregoing and in
addition to and consistent with the covenants set forth in Sections 6.04 and
6.07, TRI shall:
(i) conduct its business solely in its own name so as not to mislead
others as to the identity of the entity with which they are dealing;
(ii) compensate all employees, consultants and agents directly, from
TRI's bank accounts, for services provided to TRI by such employees,
consultants and agents and, to the extent any employee, consultant or agent
of TRI is also an employee, consultant or agent of any Affiliate of TRI,
allocate the compensation of such employee, consultant or agent between TRI
and such Affiliate on a basis which reflects the actual use or value of
services rendered to TRI and such Affiliate;
(iii) have separate stationery and other business forms;
(iv) allocate all overhead expenses (including, without limitation,
telephone and other utility charges) for items shared between TRI and any
Affiliate on the basis of actual use to the extent practicable and, to the
extent such allocation is not practicable, on a basis reasonably related to
actual use;
(v) at all times have at least one (l) "Independent Director" as
defined in and as required under TRI's certificate of incorporation;
(vi) maintain TRI's Records separate from those of any Affiliate, and
otherwise maintain TRI's assets in a manner which facilitates their
identification and segregation from those of any Affiliate;
(vii) prepare its financial statements separately from those of its
other Affiliates and insure that any consolidated financial statements of
any Seller or Xxxxxx that include TRI have detailed notes to the effect
that TRI is a separate corporate entity and that TRI's creditors have a
claim on its assets prior to those assets becoming available to any
creditors of any Seller or Xxxxxx;
(viii) use its best efforts not to commingle funds or other assets of
TRI with those of any other Affiliate, and
20
32
will not maintain bank accounts or other depository accounts to which any
Affiliate is an account party, into which any Affiliate makes deposits or
from which any Affiliate has the power to make withdrawals;
(ix) not permit any Affiliate to pay any of TRI's operating expenses
(except pursuant to allocation arrangements that comply with the
requirements of clause (ii) or (iv) of this Section 6.09 or pursuant to the
terms of the Second Tier RPSA;
(x) not guarantee any obligation of any Affiliate nor (to the extent
that TRI has the legal power to prevent such) have any of its obligations
guaranteed by any such Affiliate, or otherwise hold itself out as
responsible for the debts of any Affiliate;
(xi) not permit TRI to be named as a direct or contingent beneficiary
or loss payee on any insurance policy covering the property of any
Affiliate such that (A) in the event of a loss in connection with such
property, payments on account thereof would be made to TRI or would be
jointly made to TRI and such Affiliate, or (B) payments on account of
losses to TRI's property would be made to any Affiliates or would be
jointly made to TRI and any Affiliates; and
(xii) take all other actions reasonably necessary on its part to
maintain the accuracy of all factual assumptions set forth in the legal
opinions described in Section 4.01 (xii).
SECTION 6.10. Taxes. TRI will (i) file all tax returns and reports required
by law to be filed by it (it being understood that certain of such filings will
be on a consolidated basis with Thermadyne and its Subsidiaries) other than any
tax returns if a failure or delay in the filing thereof could not reasonably be
expected to have a Material Adverse Effect, (ii) accrue in accordance with GAAP
for all taxes shown on such returns and reports and (iii) pay all taxes and
governmental charges shown on such tax returns and reports to be owing by it
prior to the date on which penalties attach, except any such taxes or charges
(i) which are being diligently contested in good faith by appropriate
proceedings, (ii) for which adequate reserves in accordance with GAAP have been
set aside on its books and (iii) with respect to which no Lien (other than
Permitted Liens) has been imposed upon any Receivables or Related Security.
21
33
ARTICLE VII
NEGATIVE COVENANTS
TRI covenants and agrees that until the Collection Date, unless the
Required Investors shall otherwise consent in writing, it will not, directly or
indirectly:
SECTION 7.01. Liens; Sales of Transferred Assets. Incur, create, assume or
permit to exist any Lien upon or with respect to any property or assets now
owned or hereafter acquired by TRI other than Permitted Liens and the Liens
created under the Program Documents, or (except as expressly contemplated
pursuant to the Program Documents) sell, convey, assign, transfer or otherwise
dispose of any of the Transferred Assets or TRI's right to receive income in
respect thereof.
SECTION 7.02. Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness except for (i) any Indebtedness to the Trustee and the Investors
expressly contemplated hereunder and (ii) Indebtedness to Xxxxxx pursuant to the
Second Tier RPSA and the Xxxxxx Purchase Price Note.
SECTION 7.03. Minimum Net Worth. Permit, at any time, its net worth
inclusive of its interest in the Receivables and Related Security to be less
than $10.0 million.
SECTION 7.04. Guarantees. Guarantee, endorse or otherwise be or become
contingently liable (including by agreement to maintain balance sheet tests) in
connection with the obligations of any other Person, except endorsements of
negotiable instruments for collection in the ordinary course of business and
reimbursement or indemnification obligations in favor of the Trustee or the
Investors as provided for under this Agreement.
SECTION 7.05. Limitation on Investments. Make any Investment in any Person
except for Permitted Investments.
SECTION 7.06. Limitation on Transactions with Affiliates. Enter into, or be
a party to any transaction with any Affiliate of TRI, except for:
(i) the transactions contemplated by the Second Tier RPSA; and
(ii) the transactions contemplated by the Company Documents; and
(iii) to the extent not otherwise prohibited under this Agreement,
other transactions in the nature of employment contracts and directors'
fees, upon fair and
22
34
reasonable terms materially no less favorable to TRI than would be obtained
in a comparable arm's-length transaction with a Person not an Affiliate.
SECTION 7.07. Program Documents; Credit and Collection Policy. Amend or
otherwise modify any Program Documents to which it is a party or grant any
waiver or consent thereunder, or amend or otherwise modify the Credit and
Collection Policy in any material respect without satisfaction of the Requisite
Conditions; except that TRI may, with prior written notice to the Trustee, (i)
exercise its right to continue the Purchases of Receivables from Xxxxxx even
though a Liquidation Event has occurred and is continuing so long as no
Liquidation Period has commenced and no Insolvency Event with respect to any
Seller or Xxxxxx has occurred and is continuing and (ii) amend any Program
Documents or any Company Document provided that any such amendment shall be on
fair and reasonable terms materially no less favorable to TRI than would be
obtained in a comparable arm's-length transaction with a Person not an Affiliate
and such amendment shall not be prohibited by, or otherwise adversely affect
TRI's ability to comply with, Section 6.09. It is expressly understood that
disclosure in any Daily Report of the matters described in clause (i) above
shall not constitute a notice to the Trustee and such notice shall be separately
provided to the Trustee. Notwithstanding the foregoing, (x) TRI shall continue
to purchase Receivables from Xxxxxx until the Termination Date has occurred (it
being understood that, except as otherwise provided in clause (y) below, nothing
in this clause (x) shall be deemed to eliminate TRI's right to designate a
Termination Date for the cessation of such purchases in accordance with Section
7.09 of the Second Tier RPSA); (y) TRI may not, without the prior written
consent of the Required Investors, designate a Termination Date if, at the time
of such designation, the Adjusted Invested Amount exceeds the Base Amount; and
(z) TRI shall cease to purchase Receivables from Xxxxxx if TRI is notified or is
otherwise aware of a filing of any Lien by the IRS or the PBGC until TRI shall
have received a written notice from the IRS or the PBGC, as applicable, that
such Lien has been released by the IRS or the PBGC.
SECTION 7.08. Charter and Bylaws. Amend or otherwise modify its certificate
of incorporation or bylaws in any manner which requires the consent of the
"Independent Director" (as defined in TRI's certificate of incorporation)
without the prior satisfaction of the Requisite Conditions; provided, that TRI
shall not make any change to its corporate name unless (i) the Trustee shall
have received thirty (30) days prior written notice of such name change and (ii)
at least ten (10) days prior to the effective date of any such name change, TRI
shall have executed and delivered to the Trustee such financing statements (Form
UCC-1 and UCC-3) as are necessary to reflect such name change.
23
35
SECTION 7.09. Lines of Business. Conduct any business other than that
described in Section 5.01(o), enter into any transaction with any Person which
is not contemplated by or incidental to the performance of its obligations under
the Program Documents, or consolidate with or merge into any other Person, or
otherwise acquire or create any Subsidiaries.
SECTION 7.10. Investor Accounts. Maintain any bank accounts other than the
Program Accounts, the Lockbox Accounts and checking accounts for payments of
Ordinary Course Expenses.
SECTION 7.11. Lockbox Banks; Change in Payment Instructions to Obligors.
(a) Make any changes in instructions to Obligors directing payments other than
to a Lockbox Bank or to the Collection Account, or (b) voluntarily add or
terminate any bank as a Lockbox Bank from those listed in Exhibit 5.01(p)
unless, with respect to the addition of any Lockbox Bank, such new Lockbox Bank
shall have a short term debt rating of at least A-1, or a long term debt rating
of at least A-, from the Rating Agency, and (ii) the Trustee shall have received
(x) copies of Lockbox Agreements executed by such new Lockbox Bank, TRI, and the
Trustee, and (y) copies of all other agreements and documents signed by TRI, the
Trustee (and, if applicable, by Sellers and/or Xxxxxx) and the respective
Lockbox Bank with respect to any new Lockbox Account.
SECTION 7.12. Accounting Treatment. Prepare any external financial
statements or other statements (including any tax filings which are not
consolidated with those of Sellers and Xxxxxx) which shall account for the
transactions contemplated by the Second Tier RPSA in any manner other than as
the sale of the Transferred Assets by Xxxxxx to TRI.
ARTICLE VIII
ADMINISTRATION AND COLLECTION OF RECEIVABLES
SECTION 8.01. Collection of Receivables.
(a) On or prior to the Effective Date, the Trustee shall establish and
maintain or cause to be established and maintained, in the name of the
Trustee and for the benefit of the Investors, four (4) segregated trust
accounts to be used in connection with the Program, which accounts shall be
referred to herein as the "Collection Account", the "Carrying Costs
Account", the "Prepayment Account" and the "Excess Funding Account". The
Carrying Costs Account shall have a sub-account entitled the "Carrying
Costs Sub-Account". The Trustee may also from time to time establish
additional segregated trust accounts to be used in
24
36
connection with the Program. All of the foregoing accounts (including the
Collection Account, the Carrying Costs Account (including the Carrying
Costs Sub-Account), the Prepayment Account and the Excess Funding Account)
are collectively referred to herein as the "Program Accounts". TRI,
Thermadyne, Xxxxxx and Sellers shall have no legal ownership of or control
over the Program Accounts and no rights of withdrawal therefrom except the
right to receive Available Cash to the extent provided for under this
Agreement and the other rights of withdrawal expressly provided for in
Section 8.07 or Section 8.08.
(b) As of the Effective Date, TRI hereby transfers and agrees to
transfer, from time to time after TRI shall have acquired them, to the
Trustee for the benefit of the Investors and the Trustee the exclusive
ownership and control of the Lockbox Accounts and all related lockboxes
owned by TRI, and TRI hereby agrees to take any further action necessary or
that the Trustee may reasonably request to effect such transfer. Each
Lockbox Bank shall be instructed to remit, on a daily basis, via overnight
or same day transfer, all immediately available funds on deposit in its
Lockbox Accounts to the Collection Account in accordance with the terms of
a Lockbox Agreement substantially in the form of Exhibit 8.01 hereto. The
Collection Agent shall advise TRI and the Trustee daily of the amount of
Collections to be received into the Collection Account on each Business Day
with respect to the Receivables and as to the amounts of such Collections
which constitute Available Cash. For administrative convenience, the
Collection Agent may assume on any day that all funds transferred to the
Collection Account by the Lockbox Banks constitute Collections, which
assumption (i) will be reflected in the Daily Report for such day, (ii)
will be binding on all parties to the Program Documents, and (iii) relieve
the Trustee of any obligation to transfer such funds to any other Person
pursuant to Section 8.01(d). If TRI or its Affiliates, agents or
representatives shall at any time receive any cash, checks or other
instruments constituting Collections, such recipient shall segregate such
payment and hold such payment in trust for the Trustee, and shall, promptly
after any identification of payments aggregating at least $1,000.00, remit
all such cash, checks and instruments, duly endorsed or with duly executed
instruments of transfer, to a Lockbox Account.
(c) At any time upon the occurrence and during the continuance of a
Liquidation Event: (i) with contemporaneous notice to TRI, the Trustee may
notify any or all of the Obligors of the ownership of Transferred Assets by
the Investors and may direct any or all of the Obligors
25
37
of Receivables included in the Transferred Assets to pay all amounts due
and payable under any such Receivables directly to the Trustee or its
designee; (ii) at the Trustee's request and at TRI's expense, TRI shall
give notice of the Investors' ownership of the Transferred Assets to each
Obligor whose Receivables are included in the Transferred Assets and direct
that payments be made directly to the Trustee or its designee; (iii) TRI
shall assemble all Records included in the Transferred Assets, and make the
same available to the Trustee at a place selected by the Trustee or its
designee; and (iv) the Trustee may enforce the RPSAs against Thermadyne and
Xxxxxx, Sellers and the Servicer and shall have the right to give or
withhold any or all consents, requests, notices, directions, approvals,
demands, extensions or waivers under or with respect to either thereof, to
the same extent as TRI would otherwise be entitled to do. In addition to
the foregoing, upon the occurrence and during the continuance of a Servicer
Termination Event, TRI shall, at the request of the Trustee, exercise its
rights under the RPSAs to notify any or all of the Obligors of TRI's
interests in the Purchased Assets. TRI hereby authorizes the Investors, and
gives to the Investors its irrevocable power of attorney, which shall be
coupled with an interest, and the Investors hereby designate the Trustee to
exercise such authorization and power of attorney, to take any and all
reasonable steps in the name of TRI, which steps are reasonably necessary
or desirable, in the reasonable determination of the Trustee, to collect
all amounts due under the Transferred Assets, including, without
limitation, endorsing TRI's name on checks and other instruments
representing Collections and, upon the occurrence and during the
continuance of a Liquidation Event, enforcing such Receivables and the
related Contracts.
(d) The Collection Agent, following notification that Collections of
any Receivable or other intangible owed to any Seller, Xxxxxx or an
Affiliate thereof, which is not a Purchased Asset, have been deposited into
the Lockbox Accounts, shall segregate all such collections or, if such
Collections have been deposited into the Collection Account, shall request
the Trustee in writing to transfer such Collections to a new Program
Account set up by the Trustee to allow for the segregation of such
Collections. Promptly after such misapplied Collections have been
reasonably identified to the Trustee, the Trustee shall turn over to such
Seller, Xxxxxx or such Affiliate, as applicable, all such Collections less
all reasonable and appropriate out-of-pocket costs and expenses, if any,
incurred by the Trustee in identifying and collecting such Receivables.
26
38
SECTION 8.02. Designation of Servicer and Collection Agent.
(a) The servicing, administering and enforcement of Collections of the
Receivables shall be conducted by the Servicer designated pursuant to
Section 5.02 of the Second Tier RPSA. If the Servicer shall cease to be the
Servicer as provided in the Second Tier RSPA, TRI or the Trustee, as
applicable, shall designate a successor Servicer pursuant to Section 5.02
of the Second Tier RPSA. If no successor Servicer is so designated by TRI
or the Trustee, as applicable, the Trustee shall act as the Servicer until
a successor Servicer is so designated.
(b) The duties and obligations of the Servicer to conduct the
servicing, administering and enforcement of the Collections under the
Program Documents may be delegated to the Person (the "Collection Agent")
designated from time to time by the Servicer in accordance with this
Section 8.02. TRI is hereby designated as, and TRI hereby agrees to perform
the duties and obligations of, the Collection Agent pursuant to the terms
hereof; provided, however, that, so long as Xxxxxx continues to agree to
perform the duties and obligations of the Collection Agent hereunder as
provided in Section 5.02 of the Second Tier RPSA, then, unless and until
the Trustee has designated a new Collection Agent pursuant to the
immediately following sentence, Xxxxxx may act as TRI's agent in performing
all of such duties and obligations (it being understood that Victor's
agreement to perform such duties and obligations shall not relieve TRI of
any liability therefor); and provided, further, that Xxxxxx may appoint one
(1) or more of Sellers to act as its agent in performing all of such duties
and obligations (it being understood that any Seller's agreement to perform
such duties and obligations shall not relieve Xxxxxx of any liability
therefor). From and after the occurrence of a Servicer Termination Event,
the Trustee may, upon direction of the Required Investors and by written
notice to TRI and to Xxxxxx, designate as Collection Agent and as Servicer
any Person (including itself or any of its Affiliates) to succeed TRI
and/or Xxxxxx as Collection Agent and/or the Servicer and may thereafter
designate any Person (including itself or any of its Affiliates) to succeed
any such successor Servicer or Collection Agent, on the condition in each
case that any such Person so designated shall agree to perform the duties
and obligations of the Collection Agent pursuant to the terms hereof and
the duties and obligations of the Servicer pursuant to the terms of the
Second Tier RPSA. The Collection Agent may, subject to satisfaction of the
Requisite Conditions, subcontract with any other Person for servicing,
administering or collecting the Receivables, provided that the Collection
Agent shall remain liable for the performance of the duties and obligations
of the Collection Agent pursuant to the terms hereof; provided, however,
that such satisfaction of the Requisite Conditions shall not be required
for TRI's appointment of Xxxxxx or Victor's appointment of one or more
Sellers, to perform the duties described above. The Collection Agent shall
not have any rights to withdraw any amount remitted
27
39
to any Lockbox Account or to the Collection Account except as otherwise
expressly provided under this Agreement. The Collection Agent shall take or
refrain from taking any action in the administration of its duties
hereunder as directed by (1) the holder of the Transferor's Interest, prior
to any Servicer Termination Event, or (ii) the Majority Investors, after
any Servicer Termination Event, in each case, provided that any such action
or omission of action is not unlawful or inconsistent with the terms of
this Agreement.
SECTION 8.03. Duties of the Collection Agent.
(a) The Collection Agent shall take or cause to be taken all such
actions as may be reasonably necessary or advisable to collect each
Receivable included in the Transferred Assets from time to time, all in
accordance with all applicable laws, rules and regulations and in
accordance with the Credit and Collection Policy, and the Collection Agent
shall not extend, modify or amend any Receivable except in accordance with
the Credit and Collection Policy. The Collection Agent shall exercise the
same care and apply the same policies with respect to the collection of the
Receivables that it would exercise and apply if it owned such Receivables,
all with reasonable care and diligence and otherwise in accordance with the
foregoing requirements. In addition, the Collection Agent shall, unless the
Trustee otherwise revokes such authority in writing from and after a
Servicer Termination Event, enforce the rights and interests of the Trustee
and the Investors in and under the Receivables, the Related Security and
the Contracts included in the Transferred Assets; provided that the
Collection Agent shall not, under any circumstances, be entitled to make
TRI, any Seller, Xxxxxx, the Trustee or any Investor a party to any
litigation without such party's express prior written consent. The
Collection Agent shall adjust the Outstanding Balance of any Receivable to
reflect Dilution and Write-Offs in accordance with the Credit and
Collection Policy. The Collection Agent's authorization under this
Agreement shall terminate on the Collection Date.
(b) The Collection Agent shall cause to be delivered to the Trustee,
on each Business Day, the Daily Report for such day prepared by the
Servicer pursuant to Section 5.03(b) of the Second Tier RPSA and shall
cause to be delivered to the Trustee and the Investors, no later than each
Reporting Date with respect to the Collection Period most recently ended,
the Settlement Statement prepared by the Servicer pursuant to such Section
5.03(b). Each Settlement Statement shall be accompanied by a certificate
signed by an Authorized Officer of each of the Servicer and the Collection
Agent substantially in the form of
28
40
Exhibit 8.03(b) hereto, which certificate shall state that no Liquidation
Event or Servicer Termination Event has occurred and is continuing, or, if
any Liquidation Event or Servicer Termination Event is continuing,
describing the steps that are being taken in respect thereof.
(c) The Collection Agent shall implement and maintain administrative
and operating procedures reasonably necessary for the performance of its
obligations hereunder (including, without limitation, an ability to
recreate Records in the event of the destruction of any originals thereof).
The Collection Agent shall also maintain at all times complete Records
and accounts relating to the Receivables, Collections and other Transferred
Assets in which timely entries are made in accordance with GAAP, as are
necessary for the performance of its obligations hereunder. Such Records
and accounts shall, without limitation, be adequate to permit the
confirmation on a daily basis of the calculations of all information
required to be included in the Daily Report. The master computer records of
the Collection Agent relating to the Receivables and the Related Security
shall be marked (by means of a general legend that will automatically
appear at or near the beginning of any computer generated list or print-out
of the Receivables or otherwise) to indicate the sale of the Participation
Interests in the Transferred Assets under this Agreement and shall include,
without limitation, (i) all payments received and all credits and
extensions granted with respect to the Receivables, (ii) the return,
rejection, repossessions, or stoppage in transit of any merchandise the
sale of which has given rise to a Receivable; (iii) any other Dilution
Factors; (iv) the taking of Receivable Notes; and (v) all Write-Offs. At
any time and from time to time, following one (1) Business Days notice from
the Trustee or its agents, representatives or permitted assignees, and
during regular business hours, the Collection Agent will permit the Trustee
or such agent, representative or permitted assignee (A) to have access to
the Collection Agent's offices, properties and computer software for
purposes of examining and making copies of and abstracts from all such
Records and (B) to discuss matters relating to the Transferred Assets with
any of the officers, employees, agents or representatives of the Collection
Agent having knowledge of such matters. The Collection Agent agrees that
representatives from any or all of the Investors shall be permitted to
accompany the Trustee on any such inspection or visit and to participate in
any such discussion.
(d) Annual Tax Information. On or before January 31 of each calendar
year, beginning with calendar year 2000, the Collection Agent, on behalf of
the Trustee, shall
29
41
furnish or cause to be furnished by the Trustee to each Person who at any
time during the preceding calendar year was an Investor such information
for such preceding calendar year, or the applicable portion thereof during
which such Person was an Investor of record, as is required to be provided
by an issuer of Indebtedness under the Code to the holders of the issuer's
Indebtedness and such other customary information as is necessary to enable
the Investors to prepare their federal income tax returns. Such obligation
of the Collection Agent shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee to such Investor pursuant to any requirements of the Code as from
time to time in effect.
SECTION 8.04. Responsibilities of TRI. Anything herein to the contrary
notwithstanding:
(a) TRI shall (i) perform (either directly or indirectly by causing
the applicable Seller to perform) all of its obligations under the
Contracts related to the Receivables transferred by it hereunder to the
same extent as if such Receivables had not been transferred hereunder and
the exercise by the Trustee of its rights hereunder shall not relieve TRI
from such obligations and (ii) pay when due (either directly or, to the
extent provided for in the RPSAs, indirectly by causing the applicable
Seller or Xxxxxx to pay when due) any taxes (excluding income taxes,
franchise taxes and other similar taxes) relating to the origination and
transfer of the Transferred Assets.
(b) Neither the Trustee nor any Investor shall have any obligation or
liability with respect to any Receivable or related Contract nor be
obligated to perform any of the obligations of TRI, Sellers or Xxxxxx
thereunder and TRI agrees to indemnify and hold harmless the Trustee and
the Investors against and from any and all liabilities arising from or
related to any such obligation or liability; provided (i) that the
foregoing indemnification is not intended to provide recourse for failures
of an Obligor to make payment on a Receivable due to Credit Reasons, and
(ii) that nothing in this Section 8.04(b) shall require TRI to indemnify
any Person for (A) damages, losses, claims or liabilities resulting from
such Person's gross negligence or willful misconduct or actions of the
Collection Agent or the Servicer (unless the Collection Agent or the
Servicer is TRI or an Affiliate of TRI), (B) for lost profits,
consequential, special or punitive damages or (C) any income taxes,
franchise taxes or similar taxes. Any indemnified amounts owed pursuant to
this Section 8.04(b) shall be paid to the Trustee within five (5) Business
Days following the
30
42
Trustee's written demand therefor, setting forth in reasonable detail the
basis for such demand; provided, however, that the Trustee's and the
Investors' recourse to TRI for such amounts shall be limited to the
aggregate of (i) amounts which are on deposit in, or thereafter received
into, the Program Accounts to the extent available in accordance with
Sections 8.07 and 8.08 hereof; (ii) the indemnification obligations of the
Collection Agent set forth in this Agreement and (iii) amounts paid to TRI
by Xxxxxx or Sellers in respect of their indemnification obligations set
forth in the RPSAs.
SECTION 8.05. Further Action Evidencing Transfers.
(a) TRI agrees that at any time and from time to time, at its expense,
it will promptly execute and deliver all further instruments and documents,
and take all further reasonable action that may be necessary to perfect,
protect or more fully evidence the Investors' ownership of the Transferred
Assets, or to enable the Trustee or the Investors to exercise or enforce
any of their respective rights hereunder. Without limiting the generality
of the foregoing, TRI will execute and file such financing or continuation
statements or amendments thereto or assignments thereof, and such other
instruments and notices, as may be necessary or appropriate.
(b) In the event that TRI, within five (5) Business Days after notice
from the Trustee, fails to deliver one (1) or more financing or
continuation statements, and amendments thereto and assignments thereof,
that the Trustee or any of its agents, representatives or permitted
assignees may reasonably determine to be necessary to evidence or perfect
the Investors' ownership of all or any of the Transferred Assets now
existing or hereafter arising, then TRI hereby authorizes the Trustee to
file any such statements without the signature of TRI where permitted by
law. If TRI fails to perform any of its agreements or obligations under
this Agreement, following expiration of any applicable notice and cure
period, the Trustee may (but shall not be required to) perform, or cause
performance of, such agreement or obligation, and the reasonable expenses
of the Trustee incurred in connection therewith shall be payable by TRI
upon the Trustee's written demand therefor (which demand shall itemize such
expenses in reasonable detail).
SECTION 8.06. Application of Collections. Any payment by an Obligor in
respect of any Indebtedness or other obligations owed by such Obligor to TRI
shall, except as otherwise specified by such Obligor or otherwise required by
law, be applied as a Collection of any Receivable of such Obligor included in
the
31
43
Transferred Assets (in the order of the age by invoice date of such Receivables
of such Obligor, starting with the oldest such Receivable) to the extent of any
amounts then due and payable thereunder before being applied to (i) any
Receivable of such Obligor arising subsequent to the Termination Date which is
not included in the Transferred Assets or (ii) any other Indebtedness of such
Obligor to any Seller, Xxxxxx or to TRI.
SECTION 8.07. Administration of Program Accounts Prior to the Liquidation
Period. On each Business Day prior to the commencement of the Liquidation Period
(other than a Business Day on which the Servicer is not required to deliver a
Daily Report pursuant to Section 5.03(b) of the Second Tier RPSA), the Trustee
shall administer all Collections received into the Collection Account prior to
12:30 p.m. (New York City time) on such day in accordance with the following
order of priority:
(a) The Trustee shall transfer to the Carrying Costs Sub-Account an
amount (the "Trustee Reserve Amount") equal to $25,000 per month, provided
that the aggregate amount on deposit in the Carrying Costs Sub-Account
shall in no event exceed $500,000. If any amount (including, without
limitation, any Trustee's fees, any indemnification amounts and any other
amount due and payable to the Trustee under the Program Documents) is due
and unpaid to the Trustee and the Trustee is not able to be paid such
amount from other funds available to it under the Program Documents, an
amount equal to such unpaid amount shall be withdrawn from the Carrying
Costs Sub-Account and paid to the Trustee. On the day following the
termination of the Program pursuant to the terms of the Program Documents,
if all amounts due to the Trustee under the Program Documents have been
paid in full under the Program Documents and the Trustee does not
reasonably expect that any other amount (including, without limitation, any
Trustee's fees, indemnification amounts and any other amounts) payable to
the Trustee under the Program Documents will become due to the Trustee
under the Program Documents, then all amounts in the Carrying Costs
Sub-Account (together with any interest thereon) shall be transferred back
to TRI.
(b) The Trustee shall transfer to the Carrying Costs Account the
amount (if any) so that after giving effect to such transfer and to all
transfers from the Carrying Costs Account on such day there is on deposit
in the Carrying Costs Account an amount equal to the Carrying Costs
Reserve. Whenever any Carrying Costs have become due and payable (or, in
the case of Ordinary Course Expenses, when TRI has made a request
certifying that such Ordinary Course Expenses need to be paid on or within
the next five (5) Business Days), the Trustee shall withdraw funds from the
Carrying Costs
32
44
Account to pay such Carrying Costs (or, in the case of Ordinary Course
Expenses, to deposit the amount of such requested funds in TRI's checking
account maintained for such purpose) as follows: first, to the payment of
all expenses (including indemnification amounts) due and owing under the
Program Documents to the Trustee in an aggregate amount not exceeding
$100,000 per annum; second, to the payment of any Servicer Fees or fees
owed to any Servicer or Collection Agent (if other than Xxxxxx or its
Affiliates) in an aggregate amount not exceeding $100,000 per annum; third,
to the payment of all expenses (including indemnification amounts) due and
owing by TRI to the Investors in an aggregate amount not exceeding $100,000
per annum minus the amount paid under clause second above; fourth, to
Interest; fifth, without duplication, to the payment of all Trustee's Fees
then due and payable; and sixth, to be remitted to TRI for the payment of
Ordinary Course Expenses in an aggregate amount not exceeding $100,000 per
annum.
(c) On any date on which the Adjusted Invested Amount exceeds the Base
Amount, the Trustee shall transfer Available Cash to the Excess Funding
Account until the Adjusted Invested Amount is equal to the Base Amount. To
the extent the Available Cash is not sufficient to eliminate such excess,
Available Cash on each succeeding Business Day shall continue to be
transferred to the Excess Funding Account by the Trustee in accordance with
the foregoing provisions of this Section 8.07(b) unless and until the
Adjusted Invested Amount no longer exceeds the Base Amount. If on any
Business Day the amount on deposit in the Excess Funding Account exceeds
the required Excess Funding Reserve, the amount of such excess shall be
transferred from the Excess Funding Account to the Collection Account.
(d) If TRI shall have given a notice of prepayment pursuant to Section
3.04(a), after giving effect to the transfer and remittance of funds under
clauses (a) and (b) of this Section 8.07, all remaining Available Cash
(including any cash income received by reason of investments of any
retained cash) attributable to the Participation Interests shall be
deposited in the Prepayment Account until the amount on deposit therein
equals the Prepayment Amount with respect to such prepayment. Amounts on
deposit in the Prepayment Account shall be paid in accordance with Section
3.04.
(e) If TRI is required to pay an Early Termination Amount under
Section 3.04(b), the Trustee shall, after giving effect to the transfer and
remittance of funds pursuant to clauses (a) through (d) above, withdraw
such
33
45
amount from the Collection Account and apply such amount as provided in
Section 3.04(b)
(f) On any date an amount is owed to the Trustee or the Investors as a
result of the rights of the Trustee or the Investors to indemnification
under the Program Documents, the Trustee shall, after giving effect to the
transfer and remittance of the funds under clauses (a) through (e) above,
withdraw such amount from the Collection Account and transfer such amount
to the Trustee and the Investors, as applicable, as provided in such
provision.
(g) After giving effect to the transfer and or remittance of funds
under clauses (a) through (f) of this Section 8.07, all remaining Available
Cash (including any cash income received by reason of investments of any
retained cash) attributable to the Participation Interests shall, except as
otherwise required in clause (g) below of this Section 8.07, be remitted to
TRI in consideration of the automatic sale of Participation Interests in
newly generated Transferred Assets and all other Available Cash shall be
remitted to TRI on account of the Transferor Interest. TRI shall apply all
such Available Cash: first, to pay any expenses (including any
indemnification amounts) due and owing to the Trustee; second, to pay any
Servicer Fees or fees owed to any Servicer or Collection Agent (if other
than Xxxxxx or its Affiliates); third, to pay any expenses (including
indemnification amounts) due and owing to the Investors; fourth, to pay
Ordinary Course Expenses not payable pursuant to clause (b) of this Section
8.07; fifth, to pay the purchase price for newly generated Purchased Assets
under the Second Tier RPSA; sixth, to pay any principal and interest on the
Xxxxxx Purchase Price Note and seventh, to pay dividends on or to redeem in
whole or in part the stock of TRI.
(h) If, on any such Business Day, either (i) an Insolvency Event with
respect to any Seller, Thermadyne or Xxxxxx or (ii) to any Seller's or
Victor's knowledge, a Liquidation Event described in clause (h) of the
definition thereof with respect to Receivables owned or originated by
Xxxxxx or originated by any Seller, has occurred and is continuing, then
the Trustee shall, after giving effect to the retention and/or remittance
of funds under clauses (a) through (e) of this Section 8.07, separately
identify all remaining Available Cash in respect of the Transferor
Interest and all remaining Available Cash in respect of the Participation
Interests received on such day, in each case attributable to Receivables
originated by such Seller or (in the case of an Insolvency Event with
respect to Thermadyne or Xxxxxx) all Receivables. All such Available Cash
in
34
46
respect of the Participation Interests shall be transferred to a new
Program Account and held in trust for the Investors on account of the
Participation Interests until the earlier of (i) commencement of the
Liquidation Period (at which time such funds shall be remitted and applied
as provided in Section 8.08) and (ii) dismissal of the proceedings giving
rise to such Insolvency Event (in which event such funds shall be used to
fund the Excess Funding Account to the extent required under clause (b) or
(c) of this Section 8.07 and then be remitted and applied as provided in
the remaining provisions of this Section 8.07). All such Available Cash
received on any day in respect of the Transferor Interest shall be applied
as follows:
(x) fifty percent (50%) of such Available Cash shall be retained
in the Collection Account as cash collateral for the payment of any
not-yet accrued Carrying Costs (including indemnification amounts but
excluding Interest) until the amount of such cash collateral so
retained equals (x) fifteen percent (15%) times (y) the Dilution
Reserve Ratio then in effect times (z) the Net Eligible Receivables as
of the date such Insolvency Event first occurred; and
(y) the remainder of such Available Cash shall be remitted to TRI
on account of the Transferor Interest and may be used by TRI to make
any payments which it is authorized to make under clause (f) of this
Section 8.07.
SECTION 8.08. Administration of Program Accounts During the Liquidation
Period. On the first day of the Liquidation Period, all funds in the Excess
Funding Account shall be transferred to the Collection Account. On each Business
Day during the Liquidation Period (other than a Business Day on which the
Servicer is not required to deliver a Daily Report pursuant to Section 5.03(b)
of the Second Tier RPSA), the Trustee shall administer all Collections received
into the Program Accounts prior to 12:30 p.m. (New York City time) on such day
and other funds in the Program Accounts in accordance with the following
provisions of this Section 8.08:
(a) The Trustee shall apply all funds held in the Carrying Costs
Account to pay all accrued and unpaid Carrying Costs (other than Servicer
Fees payable to Xxxxxx or its Affiliates) in the following order of
priority: first, to the payment of all expenses (including indemnification
amounts) due and owing to the Trustee under the Program Documents in an
aggregate amount not exceeding $100,000 per annum; second, to the payment
of any Servicer Fees or fees owed to any Servicer or Collection Agent (if
35
47
other than Xxxxxx or its Affiliates) in an aggregate amount not exceeding
$100,000 per annum; third, to the payment of all expenses and
indemnification amounts due and owing by TRI to the Investors (but
excluding any Early Termination Amounts) in an aggregate amount per annum
not exceeding $100,000 minus amounts paid under clause second above;
fourth, to Interest; fifth, without duplication, to the payment of all
Trustee's Fees; sixth, if the Invested Amount has been reduced to zero, the
Early Termination Amounts then due and payable; and seventh, to be remitted
to TRI for the payment of Ordinary Course Expenses in an aggregate amount
not exceeding $100,000 per annum. All Collections remaining in the Carrying
Costs Account after payment of the above-described Carrying Costs shall,
until the Collection Date has occurred, be retained as cash collateral for
the payment of any not-yet accrued Carrying Costs described above or for
the payment of any indemnities described below in Section 8.08(c). During
the Liquidation Period, no amount shall be reserved for or paid on account
of the Servicer Fees owed to Xxxxxx or its Affiliates until all of the
Invested Amount, Interest, fees and other amounts owed under the Program
Documents to the Investors or the Trustee have been paid in full.
(b) The Servicer shall separately identify the Collections in respect
of the Transferor Interest and the Collections in respect of the
Participation Interests received on such day. Collections in respect of the
Transferor Interest shall be applied to pay (i) all accrued and unpaid
Carrying Costs described above (other than Servicer Fees payable to Xxxxxx
or its Affiliates and other than Interest) in the order of priority set
forth in Section 8.08(a) above, and (ii) all other indemnification amounts
due and owing under the Program Documents. All remaining Collections on
account of the Transferor Interest shall be retained as cash collateral for
the payment of any not-yet accrued Carrying Costs (including
indemnification amounts) described above or for the payment of any
indemnities described below in Section 8.08(c).
(c) If, on any such Business Day during the Liquidation Period, (A)
the Outstanding Balance of any Receivable included in the Transferred
Assets is reduced, canceled or otherwise adjusted on account of a Dilution
Factor or on account of any other matter for which the Investors are
entitled to be indemnified under Section 9.02, or (B) TRI shall have
breached its representation in the last sentence of Section 5.01(h) with
respect to any Receivable, then TRI shall be deemed to have received on
such day a Collection of such Receivable in the amount of such reduction,
cancellation or adjustment, and the Trustee
36
48
shall, from the cash collateral otherwise retained pursuant to Section
8.08(a) or Section 8.08(b) above, allocate an amount equal to the
Investors' Participation Interests in such deemed Collections and such
amount shall be applied in accordance with the provisions of Section
8.08(d), Section 8.08(e) and Section 8.09, as applicable.
(d) The Trustee shall retain in the Collection Account and on the
Settlement Date occurring in the month next succeeding the month in which
the Liquidation Period commenced and on each Settlement Date occurring
thereafter remit to the Investors all Collections in respect of the
Participation Interests (including all deemed Collections in respect
thereof pursuant to Section 8.08(c) and all Collections held on account of
the Participation Interests prior to the Liquidation Period under Section
8.07(d)), to be applied in the following order of priority: first, to pay
any accrued and unpaid Interest; second, to pay any accrued and unpaid
Carrying Costs or other amounts payable under Section 8.08(a) and not
satisfied through the application of other Collections pursuant to Section
8.08(a) or Section 8.08(b) in an aggregate amount not exceeding $100,000
per annum; and third, to reduce the Invested Amount until the Invested
Amount equals zero.
(e) After the Invested Amount has been reduced to zero, any remaining
Collections and proceeds of the Transferred Assets shall be applied towards
the Early Termination Amount, if any, and then applied first, toward
indemnification and any other amounts due and owing to the Trustee under
the Program Documents and second, towards indemnification and other amounts
due and owing to the Investors under the Program Documents. Any remaining
Collections, less any continued Carrying Costs which have accrued and
remain unpaid, shall be remitted first, to Xxxxxx in payment of any accrued
and unpaid Servicer Fees and second, to TRI.
(f) During the Liquidation Period, the Trustee may, at its discretion,
require that all Collections and other proceeds which would otherwise be
received into the Collection Account be held in a special segregated
account pending the determination of whether such Collections and other
proceeds are included in the Transferred Assets or not. In such event, the
Collection Agent shall, as soon as possible after receipt of any
Collections and other proceeds by the Trustee, (i) determine whether such
Collections and proceeds are included in the Transferred Assets or
otherwise and (ii) notify TRI, Xxxxxxx, Xxxxxx and the Trustee of such
determination. The Trustee shall as soon as possible thereafter transfer
any Collections or proceeds included in the
37
49
Transferred Assets to the Collection Account for application pursuant to
the other terms of this Section 8.08 and pay any Collections that are not
included in the Transferred Assets to the applicable Person.
Notwithstanding the foregoing, during any Liquidation Period, all
Collections received from an Obligor in respect of any Receivables of such
Obligor or other Indebtedness owed to any Seller of such Obligor, Xxxxxx
and/or TRI shall continue to be applied in accordance with the provisions
of Section 8.06 hereof and Section 5.06 of the Second Tier RPSA.
SECTION 8.09. Remittances and Investment of Funds. All remittances from the
Collection Account to the Investors, to TRI or to the Trustee as required under
Section 8.07 or under Section 8.08 shall be by wire transfer of immediately
available funds. All funds which are retained in the Program Accounts pursuant
to Section 8.07 or Section 8.08 (including funds maintained as part of the
Carrying Costs Account) shall be invested in Permitted Investments selected by
the Trustee at the written direction of TRI, or, absent such direction, as the
Trustee shall select, provided, however, that (i) each such investment shall be
in the name of the Trustee or otherwise in a form which permits the Trustee to
maintain a perfected security interest in such investment and (ii) the
maturities of Permitted Investments maintained as part of the Carrying Costs
Account shall be limited to ensure that all such Permitted Investments mature in
time for TRI to make timely payments of all Carrying Costs as the same become
due. The Trustee may liquidate any Permitted Investments prior to maturity in
order to transfer funds or make any distributions which transfers or
distributions are required under the Program Documents. It is understood that
the Trustee shall have no liability to TRI or to any other Person for (i) the
rate of return on any such Permitted Investments or (ii) any failure to
transfer funds to such party on account of the Trustee's inability to liquidate
any Permitted Investments.
SECTION 8.10. No Recourse for Credit Problems. It is understood and agreed
that TRI shall not be liable for failure of an Obligor to make a payment on a
Receivable due to Credit Reasons.
ARTICLE IX
TERMINATION OF REINVESTMENTS; INDEMNIFICATION
SECTION 9.01. Termination of Reinvestment.
(a) The obligation of the Investors to reinvest Collections in respect
of the Participation Interests in the Transferred Assets shall terminate on
the Scheduled
38
50
Liquidation Commencement Date unless the Termination Date shall have
earlier occurred pursuant to the definition thereof. Upon any such
Termination Date, (i) the Liquidation Period shall immediately commence;
(ii) the Trustee and the Majority Investors shall be entitled to pursue any
other right or remedy under this Agreement; and (iii) following the Sale
Date, the Trustee and the Majority Investors shall be entitled to exercise
all the rights and remedies provided to a purchaser of accounts (or a
secured creditor) under the UCC or otherwise, all of which rights and
remedies shall be cumulative to those provided in this Agreement and the
other Program Documents.
(b) If an Insolvency Event shall occur with respect to TRI, within
seven (7) Business Days of the date of written notice to a Responsible
Officer of the Trustee of such Insolvency Event, the Trustee shall:
(i) publish a notice in an Authorized Newspaper that an
Insolvency Event has occurred with respect to TRI and that the Trustee
intends to instruct the Servicer to sell, dispose of or otherwise
liquidate the Receivables and Related Security pursuant to this
Agreement in a commercially reasonable manner and on commercially
reasonable terms, which shall include the solicitation of competitive
bids (a "Disposition") and
(ii) send written notice to the Investors describing the
provisions of this Section 9.01 and requesting each Investor to advise
the Trustee in writing whether (A) it wishes the Trustee to instruct
the Servicer not to effectuate a Disposition (a notice given pursuant
to this sub-clause (A) being a "Stop Notice"), (B) it refuses to
advise the Trustee as to the specific action the Trustee shall
instruct the Servicer to take or (C) it wishes the Servicer to effect
a Disposition.
The day on which the notice referred to in clause (b)(i) is first
published is referred to herein as the "Publication Date". If, prior to the
sixtieth (60th) day following the Publication Date, the Trustee shall not
have received written Stop Notices from the Majority Investors, the Trustee
shall instruct the Servicer to effectuate a Disposition, and the Servicer
shall proceed to consummate a Disposition. If, however, the Trustee shall
have received written Stop Notices from the Majority Investors prior to the
sixtieth (60th) day following the Publication Date, the Trustee shall not
so instruct the Servicer.
39
51
(c) The proceeds from any Disposition of the Receivables and the
Related Security pursuant to the foregoing clause (b) shall be treated as
Collections on the Receivables and shall be allocated and deposited in
accordance with the provisions of Article VIII.
(d) The Trustee or the Servicer may appoint an agent or agents to
assist with its responsibilities pursuant to this Section 9.01 with respect
to competitive bids.
(e) TRI or any of its Affiliates shall be permitted to bid for the
Receivables and the Related Security. The Trustee may obtain a prior
determination from any bankruptcy trustee, receiver or liquidator that the
terms and manner of any proposed Disposition are commercially reasonable.
(f) The Trustee shall continue to have the rights described in this
Agreement, and be subject to direction on terms consistent with those set
out in Section 10.01(b), pending the completion of any Disposition.
SECTION 9.02. Indemnities by TRI.
Without limiting any other rights which the Trustee and/or the
Investors may have hereunder or under applicable law, but without
duplication, TRI hereby agrees to indemnify the Trustee and each Investor
from and against any and all damages, losses, claims, liabilities and
related costs and expenses, including reasonable attorneys' fees and
expenses awarded against or incurred by any such party or their assignees
relating to or resulting from any of the following (being collectively
referred to as "Indemnified Amounts"):
(i) reliance on any representation or warranty made by TRI (or
any of its officers) under or in connection with the Program Documents
or in connection with the preparation of any Daily Report or any
Settlement Statement, or reliance on any other information or report
delivered pursuant hereto, which shall have been false, incomplete or
incorrect in any respect when made;
(ii) the failure by TRI to comply with any term, provision or
covenant contained in this Agreement, any other Program Documents or
any agreement executed in connection with this Agreement, any other
Program Documents or with any applicable law, rule or regulation with
respect to any Receivable, the related Contract or the Related
Security, or the nonconformity of any Receivable, the related Contract
or the Related
40
52
Security with any such applicable law, rule or regulation;
(iii) the failure to vest and maintain vested in the Trustee and
the Investors or to transfer to the Investors, legal and equitable
title to and ownership of the Receivables and other Transferred Assets
which are, or are purported to be, transferred by TRI hereunder, free
and clear of any Lien (other than Permitted Liens and Liens created in
favor of the Investors and the Trustee hereunder and under the other
Program Documents);
(iv) 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 other applicable laws with respect to
any Receivables and other Transferred Assets which are, or are
purported to be, transferred by TRI hereunder, whether at the time of
any Purchase or at any subsequent time;
(v) the failure by TRI to be duly qualified to do business, to be
in good standing or to have filed appropriate fictitious or assumed
name registration documents in any jurisdiction where its ownership of
property or the conduct of business requires such qualification;
(vi) any dispute, claim, offset or defense of the Obligor (other
than discharge in bankruptcy or payment in full) to the payment of any
Receivable in which an interest is, or is purported to be, transferred
by TRI hereunder (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 related to such Receivable;
(vii) any products liability claim or personal injury or property
damage suit or other similar or related claim or action of whatever
sort arising out of or in connection with the goods and/or merchandise
or services that are the subject of any Receivable or related
Contract;
(viii) the failure of TRI to pay when due (A) any taxes or
charges imposed on TRI or (B) any sales taxes or other charges imposed
in connection with the transfer of the Transferred Assets;
41
53
(ix) the failure of TRI or any of its agents or representatives
(including, without limitation, agents, representatives and employees
of Xxxxxx acting pursuant to authority granted under Section 8.02) to
remit to the Trustee any Collections of Transferred Assets; and
(x) the use of proceeds of the sale of the Certificates or the
use of any Available Cash for any purposes other than those expressly
contemplated under the Program Documents.
In addition to the foregoing, TRI agrees to indemnify the Trustee and each
Investor for Indemnified Amounts relating to or resulting from any of the
foregoing to the extent such Indemnified Amounts also relate to or result
from any actions taken by it as Collection Agent or from its failure to
take any actions to be performed or observed by it as Collection Agent.
It is expressly agreed and understood by the parties (i) that the
foregoing indemnification is not intended to provide recourse for failures
of an Obligor to make payment on a Receivable due to Credit Reasons and
(ii) that nothing in this Section 9.02 shall require TRI to indemnify any
Person for (A) damages, losses, claims or liabilities resulting from such
Person's gross negligence or willful misconduct or actions of the
Collection Agent or the Servicer (if such Person is the Collection Agent or
Servicer); provided that, notwithstanding the foregoing, in no event shall
TRI have any obligation to indemnify a Person for the gross negligence or
willful misconduct of the Servicer, if the Servicer is not Xxxxxx or an
Affiliate of Xxxxxx; (B) for lost profits, consequential, special or
punitive damages or (C) any income taxes, franchise taxes or similar taxes.
Any Indemnified Amounts owed pursuant to this Section 9.02 shall be paid to
the Trustee within five (5) Business Days following the Trustee's written
demand therefor, setting forth in reasonable detail the basis for such
demand; provided, however, that the Trustee's and the Investors' recourse
to TRI for such amounts shall be limited to the aggregate of (i) to the
extent available in accordance with the priorities provided therein,
amounts which are on deposit in, or thereafter received into, the Program
Accounts, (ii) the indemnification obligations of the Collection Agent set
forth above and (iii) amounts paid to TRI by Xxxxxx or Sellers in respect
of their indemnification obligations set forth in the RPSAs.
Notwithstanding anything to the contrary in this Agreement, for purposes of
this Section 9.02, the representations, warranties and covenants in this
Agreement that are qualified by a materiality standard shall not be deemed
to be limited to
42
54
failures to perform or comply or to events, circumstances, conditions or
changes that gave rise to a Material Adverse Effect.
ARTICLE X
THE TRUSTEE; THE CERTIFICATES
SECTION 10.01. Authorization and Action.
(a) By purchasing a Certificate (or an interest therein), each
Investor appoints the Trustee as its representative for purposes of this
Agreement (including for purposes of acquiring Participation Interests) and
irrevocably authorizes the Trustee to take such action as trustee on its
behalf and to exercise such powers as are delegated to the Trustee by the
terms of the Program Documents, together with such powers as are reasonably
incidental thereto. The Trustee shall not be required to take any action
which exposes the Trustee to personal liability or which is contrary to the
Program Documents or applicable law. Except where this Agreement expressly
provides otherwise, the Trustee agrees to give to each Investor and to each
Rating Agency (i) a copy of each Settlement Statement delivered to the
Trustee and (ii) if so requested in writing by such Investor or each Rating
Agency, a copy of any other notice given to it by TRI or any Seller or
Xxxxxx pursuant to the terms of this Agreement. The appointment and
authority of the Trustee hereunder shall terminate at the Collection Date.
(b) Notwithstanding anything herein to the contrary, the Trustee shall
take or refrain from taking any action as directed by the Majority
Investors (or where required hereunder, the Required Investors or all
Investors, as the case may be), provided that the Trustee shall not take or
refrain from taking any action pursuant to this Section that is
inconsistent with the terms of this Agreement or that is unlawful. Except
as otherwise expressly provided herein, the Investors shall be required to
exercise all remedies provided for herein upon the occurrence of a
Liquidation Event or Servicer Termination Event by so directing the
Trustee; provided that if the Trustee shall fail promptly to comply with
any such direction, the Majority Investors (or where required hereunder,
the Required Investors or all Investors, as the case may be), shall be
entitled to take the actions specified in such direction for the benefit of
all Investors; and provided further that nothing in this Section shall be
deemed to prohibit any Investor from
43
55
instituting legal proceedings to collect any amounts due to it hereunder.
SECTION 10.02. Nature of Trustee's Duties. The Trustee shall have no duties
or responsibilities except those expressly set forth in this Agreement or in the
other Program Documents to which it is a party. The Trustee, prior to the
occurrence of a Liquidation Event or a Servicer Termination Event of which it
has knowledge and after the curing of all Liquidation Events and Servicer
Termination Events which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Agreement. After a
Liquidation Event or a Servicer Termination Event of which a Responsible Officer
of the Trustee has knowledge has occurred (and has not been cured or waived),
the Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs. The Trustee shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any
Investor with any credit or other information with respect to TRI, any Seller or
Xxxxxx, whether coming into its possession before the date hereof or at any time
or times thereafter. If the Trustee seeks the consent or approval of the
Investors to the taking or refraining from taking any action hereunder, the
Trustee shall send notice thereof to each Investor. The Trustee shall promptly
notify each Investor any time that the Investors have instructed the Trustee to
act or refrain from acting pursuant hereto.
SECTION 10.03. UCC Filings; Enforcement. Each of TRI and the Investors
expressly recognizes and agrees that the Trustee shall have no duties in
connection with UCC filings required to be made hereunder other than those
expressly and specifically undertaken in accordance with the Program Documents.
The Majority Investors shall be entitled to enforce the rights created under
this Agreement for the benefit of the Investors without the need to conduct such
enforcement through the Trustee except as provided herein. No single Investor
shall have such right of enforcement unless such Investor owns Certificates
evidencing one-hundred percent (100%) of the Invested Amount.
SECTION 10.04. Trustee's Reliance. Etc.
(a) Neither the Trustee nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it
or them as Trustee under or in connection with the Program Documents
(including, without limitation, the Trustee's servicing, administering or
collecting Receivables as Collection Agent) except for its or their own
gross negligence or willful misconduct.
44
56
Without limiting the foregoing, the Trustee: (i) may consult with legal
counsel (including counsel for TRI), 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 Investor and shall not be responsible to any Investor
for any statements, warranties or representations made in the Certificates
or in connection with the Program Documents; (iii) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of the Program Documents on the part of
any Person or to inspect the property (including the Records) of any
Person; (iv) shall not be responsible to any Investor for the due
execution, legality, validity, enforceability, genuineness, sufficiency, or
value of the Program Documents, or any other instrument or document
furnished pursuant thereto; and (v) shall incur no liability under or in
respect of the Program Documents by acting upon any notice (including
notice by telephone), consent, certificate or other instrument or writing
(which may be by telex or facsimile) believed by it to be genuine and
signed or sent by the proper party or parties.
(b) For purposes of determining the allocation, transfers and
distributions of funds under Article VIII, the Trustee shall be entitled to
rely on calculations made by the Servicer in the applicable Daily Reports
and Settlement Statements, and shall not have any liability to any Person
in respect of mistakes or omissions in such reports and statements. If the
Servicer shall have failed to submit a Daily Report or Settlement Statement
when due, the Trustee may suspend such allocations, transfers and
distributions until it has received instructions with respect thereto from
the Majority Investors, in which event the Trustee shall be entitled to
rely on such instructions and shall incur no liability to any Person with
respect to such reliance.
(c) The Trustee may at any time request instructions from the
Investors with respect to any actions or approvals which by the terms of
this Agreement or of any of the other Program Documents the Trustee is
permitted or required to take or to grant, and if such instructions are
promptly requested, the Trustee shall be absolutely entitled to refrain
from taking any action or to withhold any approval and shall not be under
any liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Program Documents until it shall
have received such instructions from the Majority Investors (or, where
required hereunder, from the Required Investors
45
57
or all Investors). Without limiting the foregoing, no Investor shall have
any right of action whatsoever against the Trustee as a result of the
Trustee acting or refraining from acting under the Program Documents in
accordance with the instructions of the Majority Investors (or, where
required hereunder, the Required Investors or all Investors)
(d) The Trustee shall not be required to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation hereunder or in relation hereto, at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby.
(f) The Trustee shall not be bound to make any investigation into the
facts of matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document.
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney or
custodian appointed with due care by it hereunder.
(h) The Trustee shall not be deemed to have knowledge of a Liquidation
Event or a Servicer Termination Event unless a Responsible Officer shall
have received written notice thereof or shall otherwise have actual
knowledge thereof.
SECTION 10.05. Trustee and Affiliates. To the extent that the Trustee or
any of its Affiliates are or shall become Investors hereunder, the Trustee or
such Affiliate, in such capacity, shall have the same rights and powers under
this Agreement as would any Investor hereunder and may exercise the
46
58
same as though it were not the Trustee. The Trustee and its Affiliates may
generally engage in any kind of business with TRI, Xxxxxx or Sellers, any of
their respective Affiliates and any Person who may do business with or own
securities of TRI, Xxxxxx, Sellers or any of their respective Affiliates, all as
if it were not the Trustee hereunder and without any duty to account therefor to
the Investors.
SECTION 10.06. Purchase Decision. Each Investor acknowledges (by its
purchase of a Certificate or any interest therein) that it has, independently
and without reliance upon the Trustee or any other Investor and based on such
documents and information as it has deemed appropriate, made its own evaluation
and decision to enter into this Agreement and to purchase an undivided ownership
interest in Transferred Assets hereunder. Each Investor also acknowledges that
it will, independently and without reliance upon the Trustee or any other
Investor, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own decisions in taking or not
taking action under the Program Documents.
SECTION 10.07. Successor Trustee. The Trustee may resign at any time by
giving thirty (30) days written notice thereof to the Investors, TRI and the
Collection Agent. The Required Investors may remove the Trustee for cause. Upon
any such resignation or removal, the Majority Investors shall have the right to
appoint a successor Trustee approved by TRI (which approval will not be
unreasonably withheld, conditioned or delayed). If no successor Trustee shall
have been so appointed and accepted such appointment within sixty (60) days
after the retiring Trustee's giving of notice of resignation, then the retiring
or removed Trustee may petition a court of competent jurisdiction to appoint a
successor Trustee acceptable to TRI (which acceptance will not be unreasonably
withheld, conditioned or delayed), which successor Trustee shall be (a) either
(i) a commercial bank having a combined capital and surplus of at least
$500,000,000 or (ii) an Affiliate of such an institution and (b) experienced in
the types of transactions contemplated by the Program Documents. In addition,
any successor Trustee must be authorized under United States law to maintain and
operate the Program Accounts. Upon the acceptance of any appointment as Trustee
hereunder by a successor Trustee, such successor Trustee shall thereupon succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring Trustee, and the retiring Trustee shall be discharged from its
duties under this Agreement. After any retiring Trustee's resignation or removal
hereunder as Trustee, the provisions of this Article X shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was a
Trustee under the Program Documents.
47
59
SECTION 10.08. The Certificates.
(a) The Certificates shall be substantially in the form of Exhibit
10.08(a). Upon issuance, each Certificate shall be executed and delivered
by TRI to the Trustee for authentication and redelivery as provided below.
Each Certificate shall be issued in a minimum denomination of $1,000,000
and an integral multiple of $100,000 in excess thereof; provided that the
holder of a Certificate may not subdivide such Certificate for resale in an
amount less than $1,000,000.
(b) On the Effective Date at the written instruction of TRI, the
Trustee shall authenticate and deliver to DTC Certificates in an aggregate
principal amount up to $50,000,000. TRI may from time to time thereafter
instruct the Trustee in writing to authenticate and deliver additional
Certificates, or increase the amount of any Certificate, without the
consent of any existing Investor if the following conditions shall have
each been satisfied on or prior to the proposed subsequent issuance date
for such Certificates:
(i) The additional Certificates proposed to be issued on such
subsequent issuance date will, upon the issuance thereof, (A) rank
pari passu with the outstanding Certificates, (B) be payable during a
Liquidation Period on the same terms as to priority and allocation of
payments as those terms which are applicable to the outstanding
Certificates, and be subject to voluntary or mandatory prepayment
under the same circumstances as those that would apply to the
outstanding Certificates, and (C) otherwise have terms that conform to
the requirements of this Agreement except that such additional
Certificates may bear Interest at a different rate;
(ii) The Rating Agency Condition shall have been satisfied;
(iii) Both before and after giving effect to the issuance of such
additional Certificates, no Liquidation Event or Unmatured
Liquidation Event shall have occurred and be continuing and the other
conditions specified in Section 4.02 shall be satisfied; and
(iv) The Trustee and the Rating Agency shall have received, in
form and substance satisfactory to them, such legal opinions
(including opinions otherwise substantially similar to those delivered
pursuant to
48
60
Section 4.0l(xii)) and similar documents as may be reasonably required
by the Trustee.
The Trustee may rely on the certification of TRI and the Servicer as to the
satisfaction of the conditions described in clause (iii) above, and shall
incur no liability to any Person in connection with such reliance.
(c) The Certificates that are issued in reliance on Rule 144A or
Regulation S will be issued in the form of one or more Global Certificates;
and other Certificates (including acquired by Institutional Accredited
Investors other than pursuant to Rule 144A or Regulation S) will be issued
in the form of Definitive Certificates.
(d) Any Certificates issued as Global Certificates shall be registered
in the name of the Clearing Agency for such Global Certificates or the
nominee of such Clearing Agency, and shall be delivered by the Trustee to
such Clearing Agency or pursuant to such Clearing Agency's instructions.
(e) Each Certificate shall be executed by manual or facsimile
signature on behalf of TRI by its President or any Vice President or by any
attorney-in-fact duly authorized to execute such Certificate on behalf of
any such officer. The Certificates shall be authenticated on behalf of the
Trustee by manual signature of a duly authorized signatory of the Trustee
bearing the manual or facsimile signature of the individual who was, at the
time when such signature was affixed, authorized to sign on behalf of TRI
or the Trustee (as applicable) shall be valid and binding obligations of
TRI, notwithstanding that such individuals or any of them ceased to be so
authorized prior to the authentication and delivery of such Certificates or
does not hold such office on the date of issuance of such Certificates. No
Certificates shall be entitled to any benefit under this Agreement, or be
valid for any purpose, unless there appears on such Certificate a
certificate of authentication substantially in the form provided for herein
executed by or on behalf of the Trustee by the manual signature of a duly
authorized signatory, and such certificate of authentication upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Agreement. All Certificates shall be dated
the date of their authentication.
(f) The ownership by any Investor of its pro rata interest in
Transferred Assets and Participation Interests evidenced by its
Certificates may not be transferred
49
61
hereunder except by a transfer of the Certificate in accordance with the
terms of this Article X.
SECTION 10.09. Registration of the Certificates.
(a) The Trustee shall keep, or shall cause to be kept, a register, in
written form or capable of being converted into written form within a
reasonable time (the "Certificate Register") in which, subject to such
reasonable regulations as it may prescribe, a transfer agent and registrar
(which may be the Trustee) (the "Transfer Agent and Registrar") shall
provide for the registration of the Certificates and of transfers and
exchanges of the Certificates as herein provided. TRI hereby appoints the
Trustee as the initial Transfer Agent and Registrar.
TRI, or the Trustee, as agent for TRI, may revoke such appointment as
Transfer Agent and Registrar and remove the then-acting Transfer Agent and
Registrar as Transfer Agent and Registrar if the Trustee or TRI (as
applicable) determines in its sole discretion that the then-acting Transfer
Agent and Registrar has failed to perform its obligations under this
Agreement in any material respect. The then-acting Transfer Agent and
Registrar shall be permitted to resign as Transfer Agent and Registrar upon
thirty (30) days prior written notice to the Trustee, TRI and the Servicer;
provided, however, that such resignation shall not be effective and the
then-acting Transfer Agent and Registrar shall continue to perform its
duties as Transfer Agent and Registrar until TRI has appointed a successor
Transfer Agent and Registrar reasonably acceptable to the Trustee and the
Person so appointed has given the Trustee written notice that it accepts
the appointment.
It is intended that the registration of Certificates described in this
Section 10.09(a) comply with the registration requirements contained in
Section 163 of the Code and the provisions of this Section will be
interpreted accordingly.
(b) None of the Certificates may be sold, transferred or otherwise
disposed of (any such sale, transfer or other disposition, as defined for
purposes of this Section, being called a "Sale", with "Sell" and "Sold"
having a correlative meaning), except in compliance with the following:
(i) An Investor may not Sell any of the Certificates unless
(A) such Sale is to TRI; or
50
62
(B) such Sale is to an Institutional Accredited Investor and
in a transaction exempt from the registration requirement of the
Securities Act (upon delivery of an investor letter,
substantially in the form of Exhibit 10.09(b)(i)(B) and, if
requested by the Trustee an opinion of counsel, in a form
satisfactory to the Trustee); or
(C) such Sale is to a Qualified Institutional Buyer that
purchases for its own account or for the account of another
Person that is a Qualified Institutional Buyer, which Person is
aware that the proposed Sale is being made in reliance on Rule
144A and to whom such Sale is being made pursuant to an available
exemption from the registration requirements of applicable state
securities laws, and, prior to the proposed Sale, transfer or
disposition, such Investor provides the Trustee and TRI with a
letter, substantially in the form of Exhibit 10.09(b)(i)(C); or
(D) such Sale is by an Investor to a transferee to whom such
Sale, transfer or disposition is being made pursuant to an
applicable exemption from the registration requirements of the
Securities Act, including Regulation S and Rule 144, and
applicable state securities laws and, prior to the proposed Sale,
transfer or disposition, such Investor and the proposed
transferee each provide the Trustee and TRI with representations
and, if requested by the Trustee or TRI, an opinion of counsel
(which may be in-house counsel), in each case satisfactory in
form and substance to the Trustee and TRI, concerning the
proposed Sale, transfer or disposition and the availability of
such exemption.
(ii) In addition, the Certificates may not be offered, sold or
delivered, directly or indirectly, and no circular, prospectus, form
of application, or other offering material or advertisement relating
to the Certificates may be distributed or published in or from any
country or jurisdiction, except under circumstances that will result
in compliance with all applicable laws and regulations of any such
country or jurisdiction.
(iii) Each Investor and each Certificate Owner will be deemed to
have acknowledged and agreed that (a) the Certificates have not and
will not be registered under the Securities Act and may not be sold
51
63
in the United States except as permitted in Section 10.09(b), (b) such
Investor or Certificate Owner will notify any purchaser, pledgee or
other transferee of from it of the transfer restrictions referred
to in Section 10.09(b) and in the following sentence, and (c) each
Certificate will bear one or more of the legends set forth in the form
of the Certificate attached hereto as Exhibit 10.08(a). Resales,
pledges or transfers of will be made as follows: (a) if the
Certificates are Global Certificates held through DTC and the resale,
pledge or transfer is between Qualified Institutional Buyers through
such system, in accordance with DTC's rules; or (b) if the
Certificates are Definitive Certificates and the buyer, pledgee or
transferee is purchasing pursuant to Section 10.09(b)(i)(A),
10.09(b)(i)(B) or 10.09(b)(i)(D) or is not a Qualified Institutional
Buyer through such system or the Certificates are in definitive form,
such resale, pledge or transfer will be affected by the delivery to
the transferee of Definitive Certificates registered in the name of
the transferee (or in the name of the transferee's nominee) on the
books maintained by the Transfer Agent and Registrar and any such
resale pledge or transfer of Definitive Certificates shall be
conditional upon the completion of the documentation described herein.
(iv) Any Qualified Institutional Buyer that holds Definitive
Certificates may, by instruction to the Trustee and subject to the
requirements of Section 10.09(b)(i)(C), exchange such Definitive
Certificates for a beneficial interest in a Global Certificate in
accordance with the customary procedures of DTC.
(v) No Investor or any other Person acting on behalf of an
Investor shall use any means of general solicitation or distribution
in connection with the marketing, Sale, transfer or other disposition
of any of the Certificates. The Certificates shall bear a legend
substantially as set forth in the form of Certificate attached as
Exhibit 10.08(a) hereto.
(vi) None of the Certificates may be issued or Sold in a
transaction registered under the Securities Act.
(c) TRI, the Servicer and the Trustee shall make available to any
selling Investor and any prospective transferee of a Certificate such
information within the possession of TRI, the Servicer or the Trustee about
the
52
64
Transferred Assets and the servicing of the Transferred Assets as such
selling Investor or prospective transferee may reasonably determine is
required to permit such Investor to comply with the requirements of Rule
144A in connection with the resale of any Certificate, promptly after the
same is requested.
(d) Subject to the requirements specified above having been fulfilled,
upon surrender for registration of transfer of any Certificate to the
Trustee, TRI shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Certificates.
(e) At the option of an Investor, its Certificates may be exchanged
for other Certificates of authorized denominations of like aggregate
undivided interests in the Participation Interests. Whenever any of the
Certificates are so surrendered for exchange, TRI shall execute, and the
Trustee shall authenticate and deliver, the appropriate number of the
Certificates that the Investor making the exchange is entitled to receive.
(f) Every Certificate presented for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in a form
satisfactory to the Trustee duly executed by the holder thereof or his
attorney-in-fact duly authorized in writing delivered to the Trustee. No
service charge shall be made for any registration of transfer or exchange
of the Certificates, but the Trustee may require payment by the Investor
that is transferring or exchanging a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with such transfer or
exchange. All Certificates surrendered for registration of transfer or
exchange shall be canceled and disposed of in a manner satisfactory to the
Trustee. The Certificates may be surrendered for registration of transfer
or exchange at the office of the Trustee designated in Section 11.05.
(g) The transfer and exchange of Global Certificates or beneficial
interests therein shall be effected through the applicable Clearing Agency,
in accordance with this Agreement (including the restriction on transfer
set forth herein) and the procedures of the Clearing Agency therefor.
(h) Each Benefit Plan that purchases a Certificate or interest therein
will be deemed to represent and warrant that (i) the acquisition and
holding of the Certificate or any interest therein will not result in a
nonexempt prohibited transaction under of ERISA or the Code or (ii) the
Investor or the Certificate Owner (as applicable)
53
65
is the general account of an insurance company and Proposed Class Exemption
for Certain Transactions Involving Insurance Company General Accounts,
dated August 22, 1994 (if adopted in the form proposed) applies to the
acquisition and holding of the Certificate by the Investor or the
Certificate Owner (as applicable).
(i) Subject to the remaining provisions of this Section 10.09(i),
unless and until it is exchanged in whole or in part for Definitive
Certificates, a Global Certificate may not be transferred, except as a
whole by the applicable Clearing Agency to a nominee of the Clearing Agency
or another nominee to a successor Clearing Agency or a nominee of such
successor Clearing Agency. Except as provided below, any Certificate
authenticated and delivered upon registration of transfer or, in any
exchange for, or in lieu of, any Global Certificate, shall also be a Global
Certificate.
(i) For transfers within a Regulation S Temporary Global
Certificate, if the Certificate Owner of a Regulation S Temporary
Global Certificate wishes at any time to transfer such interest to a
person who wishes to take delivery thereof in the form of a beneficial
interest in such Regulation S Temporary Global Certificate, such
transfer may be effected in accordance with this clause (i). Upon
delivery (x) by a Certificate Owner of an interest in a Regulation S
Temporary Global Certificate to Euroclear or CEDEL, as the case may
be, of a certification in the form set forth in Exhibit 10.09(i)(1)
(an "Owner Reg S Certification"), (y) by the transferee of such
beneficial interest in the Regulation S Temporary Global Certificate
to Euroclear or CEDEL, as the case may be, of a written certification
in the form set forth in Exhibit 10.09(i)(2) (a "Transferee Reg S
Certification"), and (z) by Euroclear or CEDEL, as the case may be, to
the Transfer Agent of a certification in the form set forth in Exhibit
10.09(i)(3) (a "Depositary Reg S Certification"), the Transfer Agent
and Registrar may direct either Euroclear or CEDEL, as the case may
be, to reflect on its records the transfer of a beneficial interest in
the Regulation S Temporary Global Certificate from the Certificate
Owner providing Owner Reg S Certification to the Person providing the
Transferee Reg S Certification.
(ii) For transfer of an interest in an Unrestricted Global
Certificate for an interest in a 144A Global Certificate, if the
Certificate Owner of a beneficial interest in the Unrestricted Global
54
66
Certificate deposited with the Clearing Agency wishes at any time to
exchange its interest in such Unrestricted Global Certificate for an
interest in the 144A Global Certificate, or to transfer its interest
in such Unrestricted Global Certificate to a Person who wishes to take
delivery thereof in the form of an interest in the 144A Global
Certificate, such Certificate Owner may, subject to the rules and
procedures of Euroclear or CEDEL and the Clearing Agency, as the case
may be, give directions for the Transfer Agent and Registrar to
exchange or cause the exchange or transfer or cause the transfer of
such interest for an equivalent beneficial interest in the 144A Global
Certificate. Upon receipt by the Transfer Agent and Registrar of
instructions from Euroclear or CEDEL (based on instructions from a
Member Organization) or from a Clearing Agency Participant, as
applicable, or the Clearing Agency, as the case may be, directing the
Transfer Agent to credit or cause to be credited a beneficial interest
in the 144A Global Certificate equal to the beneficial interest in the
Unrestricted Global Certificate to be exchanged or transferred (such
instructions to contain information regarding the Clearing Agency
Participant account to be credited with such increase, and, with
respect to an exchange or transfer of an interest in the Unrestricted
Global Certificate, information regarding the Clearing Agency
Participant account to be debited with such decrease), the Transfer
Agent and Registrar shall instruct the Clearing Agency to reduce the
Unrestricted Global Certificate by the aggregate principal amount of
the beneficial interest in the Unrestricted Global Certificate to be
exchanged or transferred, and the Transfer Agent and Registrar shall
instruct the Clearing Agency, concurrently with such reduction, to
increase the principal amount of the 144A Global Certificate by the
aggregate principal amount of the beneficial interest in the
Unrestricted Global Certificate to be so exchanged or transferred, and
to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the 144A
Global Certificate equal to the reduction in the principal amount of
the Unrestricted Global Certificate.
(iii) For transfers of an interest in a 144A Global Certificate
for an interest in a Regulation S Global Certificate, if the
Certificate Owner of a beneficial interest in the 144A Global
Certificate wishes at any time to exchange its interest in such 144A
Global Certificate for an interest in the Regulation S Global
Certificate, or to transfer its
55
67
interest in such 144A Global Certificate to a person who wishes to
take delivery thereof in the form of an interest in the Regulation S
Global Certificate, such Certificate Owner may, subject to the rules
and procedures of the Clearing Agency, give directions for the
Transfer Agent to exchange or cause the exchange or transfer or cause
the transfer of such interest for an equivalent beneficial interest in
the Regulation S Global Certificate. Upon receipt by the Transfer
Agent of (1) instructions given in accordance with the Clearing
Agency's procedures from a Clearing Agency Participant directing the
Transfer Agent to credit or cause to be credited a beneficial interest
in the Regulation S Global Certificate in an amount equal to the
beneficial interest in the 144A Global Certificate to be exchanged or
transferred, (2) a written order given in accordance with the Clearing
Agency's procedures containing information regarding the account of
the depositaries for Euroclear or CEDEL or another Clearing Agency
Participant, as the case may be, to be credited with such increase and
the name of such account, and (3) a certificate in the form of Exhibit
10.09(i)(4) (a "Transfer to Regulation S Certification") attached
hereto given by the Certificate Owner of such beneficial interest, the
Transfer Agent shall instruct the Clearing Agency to reduce the 144A
Global Certificate by the aggregate principal amount of the beneficial
interest in the 144A Global Certificate to be so exchanged or
transferred and the Transfer Agent shall instruct the Clearing Agency,
concurrently with such reduction, to increase the principal amount of
the Regulation S Global Certificate by the aggregate principal amount
of the beneficial interest in the 144A Global Certificate to be so
exchanged or transferred, and to credit or cause to be credited to the
account of the person specified in such instructions a beneficial
interest in the Regulation S Global Certificate equal to the reduction
in the principal amount of the 144A Global Certificate.
(iv) Notwithstanding any other provisions of this Section
10.09(i), a placement agent for the Certificates may exchange
beneficial interests in the Regulation S Temporary Global Certificate
held by it for interests in the 144A Global Certificate only after
delivery by such placement agent of instructions for such exchange
substantially in the form of Exhibit 10.09(i)(5) (the "Placement
Agent Exchange Instructions"). Upon receipt of the instructions
provided in the preceding sentence, the Transfer Agent shall instruct
the Clearing Agency to reduce the
56
68
principal amount of the Regulation S Temporary Global Certificate by
the principal amount of the beneficial interest in the Regulation S
Temporary Global Certificate to be so transferred and shall instruct
the Clearing Agency to increase the principal amount of the 144A
Global Certificate and credit or cause to be credited to the account
of such placement agent a beneficial interest in such 144A Global
Certificate having a principal amount equal to the amount by which the
principal amount of the Regulation S Temporary Global Certificate was
reduced upon such transfer pursuant to the instructions provided in
the first sentence of this clause (iv)
(v) In the event that a Global Certificate is exchanged for a
Definitive Certificate, such Certificates may be exchanged or
transferred for one another only in accordance with such procedures as
are substantially consistent with the provisions of clauses (i)
through (iii) above (including the certification requirements intended
to ensure that such exchanges or transfers comply with Rule 144A or
Regulation S under the Securities Act, as the case may be) and as may
be from time to time adopted by the Trustee.
(j) Certificateholders holding Definitive Certificates shall not Sell
such Certificates unless such Sale is by a Certificateholder to a
transferee to whom such Sale is being made pursuant to an applicable
exemption from the registration requirements of the Securities Act and
applicable state securities laws and, prior to the proposed Sale such
Certificateholder and the proposed transferee each provide the Trustee with
representations and, if requested by the Trustee, an opinion of counsel
(which may be in-house counsel), in each case satisfactory in form and
substance to the Trustee, concerning the proposed Sale and the availability
of such exemption.
(k) Certificateholders shall not use any means of general solicitation
or distribution in connection with the marketing or Sale of any of the
Certificates. None of the Certificates may be issued or Sold in a
transaction registered under the Securities Act. The Certificates shall
bear legends substantially as set forth in the form of the Certificates
attached as Exhibit 10.08(a).
SECTION 10.10. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate is surrendered to the Trustee, or if the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (b) there is delivered to the Trustee such security or
indemnity
57
69
as may be required by it and TRI to hold each of them harmless, then TRI shall
execute, and the Trustee shall authenticate and deliver, a new Certificate of
like terms and principal amount; provided that an unsecured agreement of
indemnity, in form and substance satisfactory to the Trustee and TRI, shall
satisfy the requirements of clause (b) of this sentence if the maker of such
agreement (or its guarantor) has a senior actual or implied debt rating or
claims paying rating from the Rating Agency of not less than A, provided that in
any case when the Trustee is expected to rely on an implied debt rating or
claims paying rating, the Trustee shall have reasonable means to verify such
implied rating. In connection with the issuance of any new Certificates under
this Section, the Trustee may require payment by the Investor of a sum
sufficient to cover any tax or governmental charge that may be imposed in
relation thereto and any other expenses (including reasonable fees and expenses
of the Trustee) in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive and indefeasible evidence
of ownership of an interest in the Transferred Assets, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be enforceable by
anyone.
If, at any time after the Trustee has given notice to the Investors of the
date on which final payment of principal is to be made with respect to all
then-outstanding Certificates in connection with the end of the Liquidation
Period, (A) the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (B) the holder of such
Certificate delivers to the Trustee such security or indemnity as may be
required by it and TRI to hold the Trustee and TRI harmless, then, in the
absence of notice to the Trustee that such Certificate has been acquired by a
bona fide purchaser, final payment of principal shall be made to such holder
without any presentation or surrender of the Certificate with respect to which
such indemnity shall have been provided.
SECTION 10.11. Persons Deemed Owners. Prior to the presentation of a
Certificate for registration of transfer, TRI, the Trustee and any agent of
either of them may treat the Person in whose name any Certificate is registered
as the owner of such Certificate for purposes of receiving distributions
hereunder and for all other purposes, and none of TRI, the Trustee or such agent
shall be affected by any notice to the contrary; provided, however, that in
determining whether the holders of a requisite principal amount of the
Certificates have given any request, direction, consent or waiver hereunder, the
Certificates owned by TRI, Xxxxxx any Seller or any Affiliate thereof shall be
disregarded.
58
70
With respect to any of the Certificates issued as Global Certificates, TRI
and the Trustee and any agent of them may treat the applicable Clearing Agency
or its nominee in whose name the Global Certificate is registered as the owner
of such Global Certificate for all purposes and except as otherwise expressly
provided herein, shall not be obligated to recognize the holders of a beneficial
interest in such Global Certificate as an "Investor" for any purpose under this
Agreement.
SECTION 10.12. Paying Agent. The Trustee shall act as Paying Agent for the
Certificates.
SECTION 10.13. Access to List of Investors. If TRI or any Investor holding
Certificates representing more than ten percent (10%) of the Invested Amount
(the "Applicant") applies in writing to the Trustee, and such application states
that the Applicant desires to communicate with other Investors with respect to
their rights under the Program Documents and is accompanied by a copy of a
communication which such Applicant proposes to transmit, then the Trustee, after
having been adequately indemnified by the Applicant for the Trustee's costs and
expenses, shall afford such Applicant access during normal business hours to the
most recent list of Investors held by the Trustee, within five (5) Business Days
after receipt of such application and indemnification. By receiving and holding
a Certificate, each Investor consents to the disclosure of its name and address
as provided above.
SECTION 10.14. Merger or Consolidation of Trustee. Any Person into which
the Trustee may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to the corporate trust
business of the Trustee, shall be the successor Trustee hereunder, if such
Person meets the requirements of Section 10.07 above, without the execution or
filing of any paper or any further act on the part of the parties hereto. The
Trustee shall promptly give notice to the Rating Agency, the Servicer and TRI
upon any such merger or consolidation of the Trustee.
SECTION 10.15. Enforcement of Claims Without Possession of the
Certificates. All rights, remedies and claims under the Program Documents may be
prosecuted and enforced by the Trustee without possession of any of the
Certificates or production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
Trustee. Any recovery of judgment shall, after provision for payment of the
reasonable compensation, expenses, disbursement and advances of the Trustee, its
agents and its counsel, be distributed to the Investors in respect of which such
judgment has been obtained in a manner specified in Section 8.08.
59
71
SECTION 10.16. Global Certificates. (a) The initial Clearing Agency shall
be DTC. Certificates will initially be issued in the form of one or more Global
Certificates described in clauses (b) below, and no Certificate Owner will
receive a Definitive Certificate representing such Certificate Owner's interest
in the Investor Certificates, except as provided in Section 10.19. Unless and
until Definitive Certificates have been issued to Certificate Owners pursuant to
Section 10.19:
(i) the provisions of this Section 10.16 shall be in full force and
effect;
(ii) TRI, the Servicer, the Paying Agent, the Transfer Agent and
Registrar and the Trustee may deal with the Clearing Agency and the
Clearing Agency Participants for all purposes (including the making of
distributions on the Certificates) as the authorized representatives of the
Certificate Owners;
(iii) to the extent that the provisions of this Section 10.16 conflict
with any other provisions of this Agreement, the provisions of this Section
10.16 shall control; and
(iv) the rights of Certificate Owners shall be exercised only through
the Clearing Agency and the Clearing Agency Participants and shall be
limited to those established by law and agreements between such Certificate
Owners and the Clearing Agency and/or the Clearing Agency Participants.
Unless and until Definitive Certificates are issued pursuant to Section
10.19, the initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit distributions of
principal and interest on the Certificates to such Clearing Agency
Participants.
(b) The Certificates sold to Qualified Institutional Buyers in reliance on
Rule 144A under the Securities Act shall be represented by a Global Certificate
(the "144A Global Certificates"), in registered form, without coupons, which
will be deposited upon the order of TRI on the Closing Date with the Trustee as
custodian for and registered in the name of Cede & Co., as nominee of the
Clearing Agency. A 144A Global Certificate will bear a legend regarding
restrictions on transfer set forth in Exhibit 10.08(a).
(c) The Certificates sold in offshore transactions in reliance on
Regulation S shall be represented initially by temporary Global Certificates
(the "Regulation S Temporary Global Certificates"). The Regulation S Temporary
Global Certificates shall be exchanged on the later of (i) forty (40) days after
the
60
72
later of (x) the Effective Date and (y) the completion of the distribution of
the Certificates, as certified by the lead placement agent and (ii) the date on
which the requisite certifications are due to and provided to the Trustee (the
later of clauses (i) and (ii) is referred to herein as the "Exchange Date") for
permanent Global Certificates (the "Unrestricted Global Certificates", and
together with the Regulation S Temporary Global Certificates, the "Regulation S
Global Certificates"). The Regulation S Global Certificates shall be issued in
registered form, without coupons, and deposited upon the order of TRI with the
Trustee as custodian for and registered in the name of a nominee of the Clearing
Agency for credit to the account of the depositaries for Euroclear and CEDEL,
which depositaries shall, on behalf of Euroclear and CEDEL, hold such interests
on behalf of account holders (each a "Member Organizations"), which have rights
in respect of such Certificates credited to their securities accounts with
Euroclear or CEDEL from time to time.
(d) A Certificate Owner of the Regulation S Temporary Global Certificate
may receive Interest payments in respect of the Certificates represented by such
Regulation S Temporary Global Certificate only after delivery by such
Certificate Owner to Euroclear or CEDEL, as the case may be, of a written
certification substantially in the form of the Owner Reg S Certification set
forth in Exhibit 10.09(i)(1) hereto, and upon delivery by Euroclear or CEDEL,
as the case may be, to the Transfer Agent and Registrar of a certification or
certifications substantially in the form of the Depositary Reg S Certification
set forth in Exhibit 10.09(i)(3) hereto. The delivery by such Certificate Owner
of such certification shall constitute irrevocable instructions by such
Certificate Owner to Euroclear or CEDEL, as the case may be, to arrange for the
exchange of such Certificate Owner's interest in the Regulation S Temporary
Global Certificate for a beneficial interest in the Unrestricted Global
Certificate after the Exchange Date in accordance with the paragraph below.
After (i) the Exchange Date, and (ii) receipt by the Transfer Agent and
Registrar of written instructions from Euroclear or CEDEL, as the case may be,
directing the Transfer Agent and Registrar to credit or cause to be credited to
either Euroclear's or CEDEL's, as the case may be, depositary's account a
beneficial interest in the Unrestricted Global Certificate in a principal amount
equal to that of the beneficial interest in such Regulation S Temporary Global
Certificate, the Transfer Agent and Registrar shall instruct the Clearing Agency
to reduce the principal amount of the Regulation S Temporary Global Certificate
and increase the principal amount of the Unrestricted Global Certificate, by the
principal amount of the beneficial interest in the Regulation S Temporary Global
Certificate to be so
61
73
transferred, and to credit or cause to be credited to the account of Euroclear,
CEDEL or a Person who has an account with the Clearing Agency (a "Clearing
Agency Participant"), as the case may be, a beneficial interest in such
Unrestricted Global Certificate having a principal amount of the Regulation S
Temporary Global Certificate which was reduced upon such transfer.
Upon return of the entire principal amount of the Regulation S Temporary
Global Certificate to the Trustee in exchange for beneficial interests in the
Unrestricted Global Certificate, the Trustee shall cancel the Regulation S
Temporary Global Certificate by perforation and shall forthwith destroy such
Regulation S Temporary Global Certificate.
SECTION 10.17. Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders of any Series represented by Global
Certificates is required under this Agreement, unless and until Definitive
Certificates shall have been issued to Certificate Owners pursuant to Section
10.16, the Trustee, the Servicer and the Paying Agent shall give all such
notices and communications specified herein to be given to holders of the
Certificates to the Clearing Agency.
SECTION 10.18. Letter of Representations. Notwithstanding anything to the
contrary in this Agreement or any supplement, the parties hereto shall comply
with the terms of each Letter of Representations.
SECTION 10.19. Exchange of the Certificates.
(a) Any Qualified Institutional Buyer that holds Definitive
Certificates may, by instruction to the Trustee and subject to the
limitations set forth herein, exchange such Definitive Certificates for a
beneficial interest in a Global Certificate in accordance with the
customary procedures of the applicable Clearing Agency.
(b) Any Person (other than a Qualified Institutional Buyer or a Person
that acquired its Certificates in reliance on Regulation S) that holds a
beneficial interest in a Global Certificate may, by instruction to the
Trustee and subject to the limitations set forth herein, exchange such
beneficial interest in a Global Certificate for a Definitive Certificate or
Certificates.
(c) Persons holding a beneficial interest in a Global Certificate may
exchange such interest for Definitive Certificates only if (i) TRI advises
the Trustee that the Clearing Agency, Euroclear or CEDEL is no longer
willing or able to discharge properly its responsibilities with respect
62
74
to the Certificates and the Trustee or TRI is unable to locate a qualified
successor, (ii) TRI, at its option, advises the Trustee that it elects to
terminate the book-entry system with respect to the Certificates through
the Clearing Agency or (iii) after the occurrence of a Liquidation Event
described in clause (g) of the definition thereof, the Majority Investors
advise the Trustee and the Clearing Agency that the continuation of a
book-entry system through the Clearing Agency (or a successor thereto) is
no longer in the best interests of the Investors. Upon the occurrence of
any of the foregoing events, the Trustee shall notify all Persons holding a
beneficial interest in a Global Certificate, through the Clearing Agency,
of the occurrence of such event and of the right of such Persons to
exchange their beneficial interest in the relevant Global Certificate for
Definitive Certificates.
(d) Upon any exchange provided for in Section 10.16(b) or (c), TRI
shall execute and the Trustee shall authenticate and deliver to the Person
or Persons specified by the Clearing Agency a new Definitive Certificate or
Certificates registered in such names and in such authorized denominations
as the Clearing Agency, pursuant to the instructions of the beneficial
owners of the Certificates requesting the exchange, shall instruct the
Trustee. Neither TRI nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of such
Definitive Certificates in connection with such exchange, the beneficial
ownership of such Global Certificate shown on the records maintained by the
Clearing Agency or its nominee shall be reduced by the amounts so exchanged
and an appropriate endorsement shall be made by or on behalf of the Trustee
on the Global Certificate, all references herein to obligations imposed
upon or to be performed by the Clearing Agency shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates.
SECTION 10.20. CUSIP Numbers. TRI in issuing the Certificates may use a
"CUSIP" number and, if it does so, the Trustee shall use the CUSIP number in
notices of redemption or exchange as a convenience to the Investors; provided,
that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the
Certificates and that reliance may be placed only on the other identification
numbers printed on the Certificates. TRI will promptly notify the Trustee of any
change in the CUSIP number.
63
75
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Amendments, Etc. (a) This Agreement may be amended from time
to time by Xxxxxx, Thermadyne, TRI and the Trustee by a written instrument
signed by each of them, without the consent of any of the Investors, (i) to cure
any ambiguity herein, (ii) to correct any provisions hereof which may be
inconsistent with any other provisions hereof, or (iii) to add any other
provisions with respect to matters or questions raised under this Agreement
which shall not be inconsistent with the provisions of this Agreement; provided,
however, that such action shall not adversely affect in any material respect the
interests of the Investors; and provided, further that the Trustee and the
Investors shall have received an opinion of counsel to TRI (in form and
substance reasonably satisfactory to the Trustee) stating that such amendment
shall not adversely affect in any material respect the interests of the
Investors.
(b) Except as provided in clause (a) above, no amendment to or waiver of
any provision of this Agreement or the other Program Documents, nor consent to
any departure by TRI therefrom, shall in any event be effective unless (A) the
same shall be in writing and signed by TRI, the Trustee and the Majority
Investors and (B) the Rating Agency Condition shall have been satisfied;
provided, however, that no such amendment or waiver shall (i) decrease the
outstanding amount of, or extend the scheduled payment date for the payment of,
any Interest or any fees owed to an Investor without the prior written consent
of such Investor; (ii) forgive or waive or otherwise excuse any repayment of the
Invested Amount without the prior written consent of each Investor affected
thereby; (iii) amend or modify the Pro Rata Share of any Investor without its
prior written consent; (iv) amend or modify the provisions of this Section 11.01
or the definition of "Majority Investors" or "Required Investors" without the
prior written consent of each Investor; (v) without the prior written consent of
all Investors, waive any Liquidation Event arising from an Insolvency Event with
respect to TRI, any Seller or Xxxxxx; (vi) without the prior written consent of
all Investors, waive, amend or otherwise modify the definition of Scheduled
Liquidation Commencement Date, Scheduled Initial Principal Payment Date,
Maturity Date or Termination Date; (vii) amend, modify or otherwise affect the
rights or duties of the Trustee hereunder without the prior written consent of
the Trustee; (viii) amend, waive or modify any definition or provision expressly
requiring the consent of the Required Investors without the prior written
consent of the Required Investors; and (ix) without the prior written consent of
the Required Investors, amend, waive or modify any definition or provision which
would result in a decrease in the Applicable Reserve Ratio. Any such waiver,
consent or
64
76
approval shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on TRI in any case shall entitle
TRI to any other or further notice or demand in the same, similar or other
circumstances.
SECTION 11.02. No Waiver; Remedies. No waiver by the Trustee or the
Investors of any breach or default of or by TRI under this Agreement shall be
deemed a waiver of any other previous breach or default or any thereafter
occurring. No failure on the part of the Trustee or the Investors 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, or any
abandonment or discontinuation of steps to enforce such right, power or
privilege, 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 11.03. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; all covenants, promises and agreements by
or on behalf of any parties hereto that are contained in this Agreement shall
bind and inure to the benefit of their respective successors and assigns. TRI
may not assign or transfer any of its rights or obligations hereunder without
the written consent of the Trustee and the Required Investors.
SECTION 11.04. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF PERSONAL
SERVICE AND VENUE; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES, EXCEPT
TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE INTERESTS OF THE TRUSTEE
AND THE INVESTORS IN THE TRANSFERRED ASSETS OR REMEDIES HEREUNDER OR THEREUNDER
IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY AGREES TO THE JURISDICTION
OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE CITY OF NEW YORK, NEW YORK (AND
ANY COURTS HEARING APPEALS FROM SUCH STATE OR FEDERAL COURT) OVER ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO SUCH PARTY AT ITS
ADDRESS SPECIFIED IN SECTION 11.05 OR PROVIDED THEREIN, AND SERVICE SO MADE
SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN
DEPOSITED IN THE U.S. MAIL, POSTAGE PREPAID. EACH OF THE PARTIES HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO
65
77
VENUE OF ANY ACTION INSTITUTED HEREUNDER WITHIN THE STATE OF NEW YORK AND
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY ANY COURT IN SUCH STATE. NOTHING IN THIS SECTION 11.04 SHALL
AFFECT THE RIGHT OF ANY PARTY HEREUNDER TO SERVE LEGAL PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF THE TRUSTEE OR THE INVESTORS TO
BRING ANY ACTION OR PROCEEDING AGAINST TRI OR ITS PROPERTY IN THE COURTS OF ANY
OTHER JURISDICTION OR JURISDICTIONS TO THE EXTENT NECESSARY FOR REALIZING ON
THEIR INTERESTS IN ANY TRANSFERRED ASSETS OR IN ANY COLLATERAL GRANTED UNDER THE
SECURITY AGREEMENT. EACH OF THE PARTIES HERETO HEREBY EXPRESSLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER OR REMEDY UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR UNDER OR IN CONNECTION HEREWITH OR ARISING
FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND
AGREES THAT ANY SUCH ACTION SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
THE TERMS AND PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT FOR
THE PARTIES ENTERING INTO THIS AGREEMENT.
SECTION 11.05. Notices. Except as otherwise expressly provided in this
Agreement, any notice shall be conclusively deemed to have been received by a
party hereto and to be effective (i) if sent by regular mail or commercial
delivery service, on the day on which delivered to such party at its address set
forth below its name on the signature pages hereto (or at such other address as
such party shall specify to the other parties hereto in writing), (ii) if sent
by telex, graphic scanning or other facsimile communications of the sending
party, when delivered by such equipment to the number set forth below its name
on the signature pages hereto or (iii) if sent by registered or certified mail,
on the day on which delivered to such party (or delivery is refused), addressed
to such party at such address:
If to TRI, to:
Thermadyne Receivables, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: 314/000-0000
Facsimile: 314/746-2387
Attention: Xxxxxxx X. Xxxx
Vice President
66
78
If to the Rating Agency, to:
Standard & Poor's Ratings Group
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Asset-Backed Surveillance Group
If to the Trustee, to:
Bankers Trust Company
0 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Structured Finance Group
SECTION 11.06. Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the Certificates shall survive
the purchase of the Certificates and the execution and delivery of this
Agreement and shall continue in full force and effect until the Collection Date
has occurred.
SECTION 11.07. Expenses; Indemnification. TRI shall pay on demand (i) all
reasonable out-of-pocket fees and expenses (including reasonable attorneys fees
and expenses) of the Trustee incurred in connection with the administration,
amendment, modification and waiver of this Agreement and the other Program
Documents and the repayment of the Certificates and (ii) all reasonable
out-of-pocket fees and expenses of the Trustee and the Investors (including
reasonable attorneys' fees and expenses of a set of counsel for the Investors)
incurred from and after a Liquidation Event in connection with the enforcement
of this Agreement and the other Program Documents against TRI, any Seller and
Xxxxxx, including, without limitation, any Servicer or Collection Agent fees
paid to any third party other than TRI, any Seller or Xxxxxx for services
rendered to the Investors and the Trustee in collecting the Receivables and the
other Transferred Assets. In addition, TRI will pay any and all stamp and other
taxes and fees payable or determined to be payable in connection with the
enforcement of this Agreement or the other Program Documents, and hereby
indemnifies and saves the Trustee and the Investors harmless from and against
any and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
67
79
SECTION 11.08. No Recourse to Stockholders, Etc. The obligations of TRI
hereunder shall be solely its obligations and shall in all respects be
non-recourse to all of its officers, directors, controlling persons or
stockholders (including, without limitation, Xxxxxx), and the Trustee and the
Investors acknowledge the same with respect to TRI and, to the fullest extent
permitted by law, waives any such recourse and any claim against any of such
parties arising hereunder; provided, however, that (a) the foregoing shall be
without prejudice to the rights that the Trustee and the Investors may have
against Xxxxxx or Sellers under the terms of the RPSAs or against Xxxxxx for a
breach of Victor's duties as Collection Agent or Servicer and (b) nothing herein
shall constitute a waiver of any rights that the Trustee or any Investor may
have against any Person on account of any claim for intentional fraud,
intentional deceit or intentional material misrepresentation or omission.
SECTION 11.09. Acceptance of Terms. Each Investor by its acceptance of a
Certificate issued hereunder, shall agree to be bound by the terms of this
Agreement and the other Program Documents.
SECTION 11.10. Execution in Counterparts; Severability. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed (which execution may be
evidenced by a faxed copy followed by the original thereof) shall be deemed to
be an original and all of which when taken together shall constitute one and the
same agreement. In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 11.11. Entire Agreement. This Agreement, together with the other
Program Documents, including the exhibits and schedules hereto and thereto,
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 entire agreement among the parties hereto with respect to the subject matter
hereof, superseding all previous oral statements and other writings with respect
thereto.
SECTION 11.12. Tax Returns. In the event tax returns shall be required to
be filed with respect to any entity deemed created hereunder for tax purposes,
TRI shall prepare or shall cause to be prepared such tax returns and shall remit
such returns to the Trustee for signature at least five Business Days before
such returns are due to be filed. TRI, in accordance with Section 8.03(d), shall
also prepare or shall cause to be prepared all tax
68
80
information required by law to be made available to the Investors and shall
deliver such information to the Trustee at least five Business Days prior to the
date it is required by law to be made available to the Investors. The Trustee,
upon request, will furnish TRI with all such information known to the Trustee as
may be reasonably required in connection with the preparation of all tax returns
required to be filed and shall, upon request, execute such returns as the
Trustee determines are appropriate.
[Remainder of page intentionally left blank.]
69
81
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized officers and delivered as of the day
and year first above written.
THERMADYNE RECEIVABLES, INC.
By: /s/ XXXXXXX X. XXXX
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
S1
82
BANKERS TRUST COMPANY, as Trustee
By: /s/ XXXXX XXXXXX
-----------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
S2
83
ANNEX I
DEFINED TERMS
When used in (i) that certain Receivables Purchase and Sale Agreement among
Xxxxxx Equipment Company and Sellers (as defined below), (ii) that certain
Receivables Purchase and Sale Agreement among Thermadyne Receivables, Inc.,
Xxxxxx Equipment Company and Thermadyne Mfg. LLC, as guarantor and (iii) that
certain Receivables Participation Agreement between Thermadyne Receivables, Inc.
and the Trustee (as defined below), capitalized terms used in any such agreement
and not otherwise defined therein shall have the meanings set forth below:
"144A Global Certificates" shall have the meaning ascribed to that term in
Section 10.16(b) of the RPA.
"Accrued Carrying Costs" shall mean, as of any date, the sum of (i) accrued
and unpaid Carrying Costs as of such date plus (ii) without duplication, the
amount of Carrying Costs that will, or are estimated by the Servicer to, have
accrued by the next Settlement Date as set forth in the then-effective
Settlement Statement.
"Acquired Assets" shall have the meaning ascribed to that term in Section
2.01(a) of the First Tier RPSA.
"Additional Foreign Obligor Reserve" shall mean (x) sixty percent (60%)
times (y) the lesser of (i) the aggregate Outstanding Balance of Eligible
Receivables owed by any Obligors located in countries which carry a sovereign
debt rating from the Rating Agency of BBB- or below and (ii) five percent (5%)
of the aggregate Outstanding Balance of Eligible Receivables, times (z) the
Applicable Reserve Ratio.
"Adjusted Invested Amount" shall mean, on any date, the Invested Amount
then outstanding minus the amount of Available Cash, if any, which is then
required to be retained in the Excess Funding Account pursuant to Section 8.07
of the RPA.
"Affiliate" shall mean, with respect to any Person, a Person that directly
or indirectly through one or more intermediaries controls, or is controlled by,
or is under common control with, such Person. The term "control" shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting stock or any equity interest, by contract, or otherwise.
"Aged Receivables Ratio" shall mean the aged receivables ratio calculated
in the most recent Settlement Statement, which ratio (expressed as a percentage)
shall equal a fraction,
84
(a) the numerator of which equals the sum of (i) the aggregate
Outstanding Balances of Receivables generated by Sellers which were from
151 to 180 days past due as of the most recent Cut-Off Date plus (ii) the
aggregate Outstanding Balances of Receivables generated by such Sellers
which were (A) written off as uncollectible during the most recently ended
Collection Period and (B) not more than 150 days past the due date at the
time of such write-off, and
(b) the denominator of which equals the aggregate Original Balances of
all new Receivables generated by such Sellers during the Collection Period
that occurred six (6) Collection Periods prior to the most recently ended
Collection Period, as determined as of the Cut-Off Date for such
sixth (6th) prior Collection Period.
The Aged Receivables Ratio calculated in any Settlement Statement shall be the
Aged Receivables Ratio with respect thereto from the Settlement Date relating
thereto until the next Settlement Date. Such Aged Receivables Ratio from the
Effective Date until the first Settlement Statement shall be as set forth on
Schedule 1 hereto and the underlying calculations for each of the twelve (12)
calendar months preceding the first Settlement Date to be used in future
calculations of such Aged Receivables Ratio shall be as set forth in such
Schedule 1.
"Applicable Margin" shall mean (i) with respect to any Certificates issued
on the Effective Date,0.65%, and (ii) with respect to any Certificates issued
after the Effective Date pursuant to Section 10.08(b) of the RPA, such number of
basis points as shall be specified in such Certificates or in the purchase
agreement related thereto, subject to satisfaction of the Rating Agency
Condition.
"Applicable Reserve Ratio" shall be, with respect to any Settlement Date,
the ratio determined as follows:
(i) determine the sum of the Loss Reserve Ratio and the Dilution
Reserve Ratio;
(ii) determine the Minimum Required Reserve Ratio;
(iii) determine the higher of the amounts (expressed as percentages)
determined pursuant to clauses (i) and (ii).
The Applicable Reserve Ratio calculated in any Settlement Statement shall apply
from the Settlement Date relating thereto until the next Settlement Date.
"Applicant" has the meaning ascribed to such term in Section 10.13 of the
RPA.
-2-
85
"Authorized Newspaper" means a newspaper of general circulation in the
Borough of Manhattan, The City of New York printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"Authorized Officer" shall mean, with respect to any entity, its President,
Vice President, Chief Executive Officer, Chief Financial Officer, Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary.
"Available Cash" shall mean, at any time, all funds then on deposit in the
Collection Account which are in excess of the then required amount of the
Carrying Costs Reserve.
"Bankruptcy Code" shall mean Title 11 of the United States Code, as amended
from time to time, or any successor statute.
"Base Amount", as of any day, will equal (i) the result obtained by
multiplying (x) Net Eligible Receivables as of such date times (y) one hundred
percent (100%) minus the Applicable Reserve Ratio, minus (ii) the Discount Rate
Reserve, minus (iii) the Additional Foreign Obligor Reserve.
"Benefit Plan" shall mean those pension, profit sharing and other employee
benefit plans subject to ERISA or the Code.
"Big 5 Firms" shall mean (x) any of Xxxxxx Xxxxxxxx LLP, DeLoitte & Touche,
Ernst & Young LLP, PriceWaterhouseCoopers, and KPMG, and (y) any successor
(including a successor or merger or other corporate organization) to
substantially all the business of any firm described in clause (x)).
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Business Day" shall mean (i) any day except a Saturday, Sunday or other
day on which commercial banks in New York City are required or authorized by law
to close, and (ii) when used with respect to setting the LIBO Rate, any day
described in clause (i) above on which commercial banks are open for
international business (including dealings in Dollar deposits) in London,
England, and (iii) in respect of matters relating to action, by Euroclear or
CEDEL, any day on which Euroclear or CEDEL, as the case may be, is open for
business.
"Carrying Costs" shall mean any of the following items: (i) Interest; (ii)
Trustee's Fees and costs and expenses and indemnification amounts due to the
Trustee under the Program Documents; (iii) Ordinary Course Expenses of TRI; and
(iv) if the Servicer is a Person other than Xxxxxx or an Affiliate of Xxxxxx and
the Liquidation Period has not commenced, Servicer Fees.
-3-
86
"Carrying Costs Account" shall have the meaning ascribed to such term in
Section 8.01(a) of the RPA.
"Carrying Costs Reserve" shall mean, on any date, Accrued Carrying Costs as
of such date; provided, however, that TRI may direct the Trustee in writing to
increase the Carrying Costs Reserve in order to simplify the daily allocations
of funds required under Section 8.07 of the RPA.
"Carrying Costs Sub-Account" has the meaning ascribed to such term in
Section 8.01(a) of the RPA.
"CEDEL" means CEDEL, S.A.
"Certificate" means a certificate issued pursuant to Section 2.01 of the
RPA that represents a right to receive a fixed principal amount and is
substantially in the form Exhibit 10.08(a) to the RPA.
"Certificate Owner" means, with respect to a Global Certificate, the Person
who is the owner of a beneficial interest in such Global Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Register" means a register maintained pursuant to Section
10.09(a) of the RPA, providing for the registration of Certificates.
"Certificateholder" means a Person in whose name a Certificate is
registered pursuant to Section 10.09(a) of the RPA.
"Clearing Agency" means, with respect to any Global Certificate, DTC or any
other Person designated as the Clearing Agency by TRI, which Person must be
registered as a "clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" has the meaning ascribed to that term in
Section 10.16(d) of the RPA.
"Closing Date" shall mean the date on which the initial purchases of the
Certificates shall occur.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collection Account" shall have the meaning ascribed to such term in
Section 8.01(a) of the RPA.
-4-
87
SCHEDULE 1
TO
ANNEX A
Chart of values to be used from Effective Date
Dilution Reserve Ratio 16.58%
Discount Rate
LIBO Rate(b)
Loss Discount(c) 0.00%
Write-offs (net recoveries)
Current Month 0
Preceding Month 1
Second Preceding Month 0
Receivables converted into Notes
Current Month 0
Preceding Month 0
Second Preceding Month 0
Collections
Current Month 30,553
Preceding Month 30,175
Second Preceding Month 30,493
Loss Reserve Ratio 14.88%
Minimum Required Reserve(d) 23.52%
Purchase Price Percentage(e)
Stoody 99.39%
Thermadyne International 97.62%
Thermal Dynamics 99.07%
Xxxxxx Equipment 99.17%
Tweco 99.24%
C&G Systems 98.75%
Thermal Arc 98.82%
Xxxxxx Gas Systems 99.17%
Turnover Days(f) 56
Ending Receivable Balance
Current Month 53,130
Preceding Month 54,374
Second Preceding Month 57,758
Gross Invoices/New Receivables
Current Month 30,400
Preceding Month 28,368
Second Preceding Month 29,601
-----------------
(a) The Discount Rate until the First Settlement Date
(b) The LIBO rate until the first Settlement Date
(c) The Loss Discount until the first Settlement Date and for the three calendar
months preceding the first Settlement Date
(d) The Minimum Required Reserve prior to the first Settlement Date
(e) The Purchase Price Percentage for each Seller and Xxxxxx until the first
Settlement Date
(f) The number to be used for Turnover Days until the first Settlement Date and
for the three Collection Periods prior to the First Settlement Date
88
"Collection Agent" shall mean, at any time, the Person then authorized
pursuant to Article VIII of the RPA to service, administer and collect the
Receivables on behalf of the Investors. The initial Collection Agent shall be
TRI and, pursuant to the terms of the RPA, TRI delegates its duties as
Collection Agent to Xxxxxx.
"Collection Date" shall mean the date following the Termination Date on
which the aggregate Outstanding Balance of the Receivables included in the
Transferred Assets shall have been reduced to zero, the Invested Amount has been
reduced to zero, and TRI has paid to the Investors and the Trustee in full all
Interest, fees and other amounts owed under the Program Documents.
"Collection Period" shall mean each calendar month.
"Collections" shall mean, with respect to any Receivable or all of the
Receivables, as the case may be, all cash collections and other cash proceeds of
such Receivable or Receivables, including, without limitation, all cash proceeds
of Related Security with respect to such Receivable or Receivables and "deemed"
Collections described in Section 8.08(c) of the RPA.
"Company Document" shall mean (i) the Management Agreement, and (ii)
subject to satisfaction of the Requisite Conditions, any other agreement by
which an Affiliate of TRI provides management or administrative services to TRI,
or leases space to TRI.
"Concentration Factor" as of any Cut-Off Date shall be the greatest of (i)
the amount of Receivables of the largest Obligor described in clause (b) of the
definition of Excess Concentration Percentage which would be permitted to be
Eligible Receivables, (ii) the amount of Receivables of the two (2) largest
Obligors described in clause (c) of the definition of Excess Concentration
Percentage which would be permitted to be Eligible Receivables, (iii) the amount
of Receivables of the three (3) largest Obligors described in clause (d) of the
definition of Excess Concentration Percentage which would be permitted to be
Eligible Receivables, and (iv) the amount of Receivables of the five (5) largest
Obligors described in clause (e) of the definition of Excess Concentration
Percentage which would be permitted to be Eligible Receivables. Such amount
shall be calculated without reference to the actual amount of Receivables that
are owing by such Obligors.
"Consolidated Affiliate" shall mean, with respect to any Person, any other
Person whose financial statements are, or should be under GAAP, consolidated
with the financial statements of such Person.
-5-
89
"Contract" shall mean an invoice or other writing, pursuant to which an
Obligor is obligated to pay for the sale of goods, merchandise and/or services
rendered by Xxxxxx or a Seller.
"Credit and Collection Policy" shall mean, the credit policies and
procedures relating to the Receivables and Contracts as described on Exhibit B
to the First Tier RPSA, as the same may be amended from time to time in
accordance with Section 4.03(c) of each RPSA and Section 7.07 of the RPA.
"Credit Reasons" shall mean, with respect to any Obligor's failure to make
a payment on a Receivable, the insolvency, bankruptcy, inability to pay (taking
into account such Obligor's total liabilities) or lack of credit worthiness of
such Obligor.
"Cut-Off Date" shall mean the last day of a Collection Period.
"Daily Report" shall mean the Daily Report substantially in the form of
Exhibit C-1 or Exhibit C-2 to the Second Tier RPSA (as applicable) delivered by
the Servicer on each Business Day as required by Section 5.03(b) of the Second
Tier RPSA.
"Definitive Certificate" means any Certificate other than a Global
Certificate.
"Depositary Reg S Certification" shall have the meaning ascribed to that
term in Section 10.09(i)(i) of the RPA.
"Dilution" shall mean, with respect to any Receivable, the actual reduction
in the Original Balance of that Receivable as a result of any claim or setoff of
the Obligor or any other adjustment made by the Servicer which reduction or
adjustment arose as a result of a Dilution Factor.
"Dilution Adjustment" shall mean, on any date, (i) with respect to the
Second Tier RPSA, payments owed by Xxxxxx to TRI pursuant to Section 2.02(f) of
the Second Tier RPSA on account of Dilution and Volume Rebate Offsets reported
for such date with respect to the Receivables, which payments shall equal the
amount of such Dilution and Volume Rebate Offsets, and (ii) with respect to the
First Tier RPSA, payments owed by Sellers to Xxxxxx pursuant to Section 2.02(e)
of the First Tier RPSA on account of Dilution and Volume Rebate Offsets reported
for such date with respect to the Receivables, which payment by each Seller
shall equal the portion of such Dilution and Volume Rebate Offsets attributable
to Receivables originated by such Seller.
"Dilution Factors" shall mean any adjustments to the Outstanding Balances
of the Receivables other than adjustments which arise as a result of
Collections, Write-Offs or the taking of any Receivable Notes. Dilution Factors
shall include, without limitation, any credits, rebates (other than any rebate
under a
-6-
90
Volume Rebate Plan), sales or other similar taxes, cash discounts, volume
discounts, cooperative advertising expenses, allowances, disputes, billing
errors, chargebacks, warranty claims, returned or repossessed goods, inventory
transfers, allowances for early payments and other allowances and discounts that
are made or coordinated with Victor's or a Seller's, as applicable, usual
practices but shall not include adjustments made on account of Credit Reasons.
"Dilution Ratio" shall mean, with respect to any Collection Period, a
fraction (expressed as a percentage) the numerator of which shall be the
aggregate amount of Dilution on Receivables originated by during such Collection
Period and the denominator of which shall be the aggregate Original Balances of
new Receivables generated during the second preceding Collection Period.
"Dilution Reserve Ratio" shall mean, commencing on any Settlement Date and
continuing until (but not including) the next Settlement Date, an amount
(expressed as a percentage) calculated in accordance with the following formula:
DRR = [(2.5 x APR) + [(HDR-ADR) x (HDR/ADR)]] x DHV
where:
DRR = the Dilution Reserve Ratio;
ADR = the average of the Dilution Ratios for the Collection Periods
occurring during the twelve (12)-month period ending on the most
recent Cut-Off Date;
HDR = the highest average of the Dilution Ratios for any two (2)
consecutive Collection Periods calculated within the twelve
(12)-month period ending on the most recent Cut-Off Date; and
DHV = a fraction having (i) a numerator equal to the aggregate original
balances of new Receivables generated for the two (2) Collection
Periods ending on the most recent Cut-Off Date (as calculated on the
Cut-Off Date for such Collection Period), and (ii) a denominator
equal to the aggregate Outstanding Balances of Eligible Receivables
as calculated on the most recent Cut-Off Date.
The Dilution Reserve Ratio calculated in any Settlement Statement shall be the
applicable Dilution Reserve Ratio from the Settlement Date relating thereto
until the next Settlement Date. The Dilution Reserve Ratio from the Effective
Date until the first Settlement Date, and the Dilution Ratios for the twelve
-7-
91
(12)-months preceding the first Settlement Date to be used in future
calculations of the Dilution Reserve Ratio, shall be as set forth in Schedule 1
hereto.
"Discount Rate" shall mean, commencing on any Settlement Date and
continuing until (but not including) the next Settlement Date, the per annum
rate at which Interest accrued on the Invested Amount as of the most recent
Cut-Off Date, plus a fraction, the numerator of which equals the Accrued
Carrying Costs (other than Interest) for the immediately preceding Collection
Period, and the denominator of which equals the aggregate Outstanding Balance of
all Receivables as of the most recent Cut-Off Date. The Discount Rate from the
Effective Date until the first Settlement Date shall be as set forth in Schedule
1 hereto.
"Discount Rate Reserve" shall mean the discount rate reserve calculated on
each day which amount shall be calculated in accordance with the following
formula:
DRR = ACC + ECC + EIC - CCR
where:
DRR = the Discount Rate Reserve;
ACC = Accrued Carrying Costs (excluding Interest) and accrued Servicer Fee
(if not otherwise included in Carrying Costs) as of the date of
determination;
ECC = the amount of additional Carrying Costs (excluding Interest) and
Servicer Fee (if not otherwise included in Carrying Costs) that
will, or are estimated by the Servicer to, accrue by the Specified
Settlement Date; and
EIC = (a) [(LIBO Rate plus the Applicable Margin (or if more than one
Applicable Margin is in effect, the weighted average of such
margins)) x the Invested Amount] /12, plus
(b) (LIBO Rate plus the Applicable Margin (or if more than one
Applicable Margin is in effect, the weighted average of such
margins) + 3.0%) x ([(2x Turnover Days) - 30]/360) x the
Invested Amount
CCR = the aggregate balance of funds in the Carrying Costs Account on the
date of determination which are retained on account of the Carrying
Costs Reserve.
"Disposition" has the meaning ascribed to that term in Section 9.01(b) (i)
of the RPA.
-8-
92
"Dollar" and the symbol "$" shall mean lawful money of the United States of
America.
"DTC" means The Depository Trust Company.
"Early Termination Amount" shall mean with respect to any prepayment of a
Certificate, the present value as of the date of prepayment of the amount of
Interest that would have accrued on the amount of principal prepaid from the
date of prepayment through the Scheduled Initial Principal Payment Date at an
interest rate equal to the Applicable Margin for such Certificate, with such
amount being discounted on a monthly basis at a rate equal to the LIBO Rate in
effect on the date of prepayment.
"Effective Date" shall mean the date on which the conditions precedent to
the effectiveness of the RPA have been satisfied and/or waived.
"Eligible Obligor" shall mean each Obligor that satisfies the following
criteria:
(a) it is not any foreign government, foreign province or other
foreign local governmental agency, or any department, agency or
instrumentality thereof;
(b) it is not an Affiliate of Xxxxxx or any Seller;
(c) as of the most recent Cut-Off Date, it was not the subject of an
Insolvency Event;
(d) as of the most recent Cut-Off Date, no more than fifty percent
(50%) of the aggregate Receivables owed by such Obligor and its
Consolidated Affiliates were (for reasons other than disputes) aged more
than ninety (90) days past their respective due dates; and
(e) as of the most recent Cut-Off Date, none of the past due
Receivables owed by such Obligor had been evidenced by Receivable Notes.
"Eligible Receivable" shall mean, at any time, a Receivable which satisfies
the following criteria:
(a) Such Receivable is (i) denominated in Dollars and payable in the
United States; (ii) non-interest bearing, and (iii) owed by an Eligible
Obligor; provided that Victor's or a Seller's imposition of an interest
charge on late payments shall not cause a Receivable to be characterized as
interest bearing, and any such interest charges shall not be included for
purposes of calculating the Outstanding Balance of such Receivable;
-9-
93
(b) Such Receivable is in compliance with all applicable laws, rules
and regulations;
(c) Such Receivable represents a bona fide obligation resulting from a
sale of goods which have been shipped or services which have been
performed, and constitutes the legally valid, binding and enforceable
obligation of the applicable Obligor in accordance with its terms;
(d) Such Receivable does not constitute a "xxxx and hold" Receivable
or other pre-billed obligation;
(e) Such Receivable arose from the sale of merchandise or services in
the ordinary course of business of Xxxxxx or a Seller;
(f) Such Receivable is not subject to any reduction, cancellation,
refund or rebate (other than any rebate under a Volume Rebate Plan) or to
any dispute, offset, counterclaim, Lien (other than created under the
Program Documents) or other defense, provided that (i) the Outstanding
Balance of any such Receivable which is otherwise eligible and is subject
only in part to any of the foregoing shall be an Eligible Receivable to the
extent not subject to any such reduction, cancellation, refund, rebate
(other than any rebate under a Volume Rebate Plan), dispute, offset,
counterclaim, Lien (other than created under the Program Documents) or
other defense and (ii) if any such Lien attaches to all of the Receivables,
such Lien shall not affect the eligibility of any Receivables but shall
instead operate as a reduction in the Net Eligible Receivables as described
in clause (v) of the definition thereof);
(g) As of the most recent Cut-Off Date, such Receivable was not aged
more than sixty (60) days past its original due date;
(h) The sale of such Receivable and the Related Security by a Seller
to Xxxxxx (if applicable), and by Xxxxxx to TRI, and the transfer of
Participation Interests therein by TRI to the Trustee do not conflict with
any law, rule or regulation or any contractual or other restriction,
limitation or encumbrance;
(i) The transfer, sale or assignment of such Receivable and the
Related Security does not require the consent of the Obligor or any other
Person other than any such consent which has been previously obtained;
-10-
94
(j) Such Receivable was created in accordance with and otherwise
complies with all applicable requirements of the Credit and Collection
Policy;
(k) Such Receivable is an "account" (and not chattel paper, a general
intangible or an instrument) within the meaning of the UCC; and
(l) The ownership or security interest, as applicable, of Xxxxxx (with
respect to Sellers), or TRI (with respect to Xxxxxx) or the Trustee and
the Investors (with respect to TRI) in such Receivable shall have been
perfected.
Without limiting the foregoing, Write-Offs and Receivables evidenced by
Receivable Notes shall not constitute Eligible Receivables.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Euroclear" means the Euroclear System.
"Excess Concentration Balances" shall mean the aggregate Outstanding
Balances of Eligible Receivables due from each Specified Obligor and, without
duplication, its consolidated Affiliates to Xxxxxx or any Seller which,
expressed as a percentage of the aggregate Outstanding Balances of all Eligible
Receivables, exceeds the applicable Excess Concentration Percentage.
"Excess Concentration Percentage" shall mean, with respect to any Obligor
and its consolidated Affiliates, the applicable percentage set forth below:
(a) 100% for any Tier-1 Obligor;
(b) 18% for (i) any Tier-2 Obligor, or (ii) all Receivables owing
from any Foreign Obligor, payment of which is fully supported by
a Qualified Letter of Credit;
(c) 12% for any Tier-3 Obligor;
(d) 12% for any one (1) Tier-4 Obligor and 6% for each other Tier-4
Obligor; and
(e) 12% for any one (1) Tier-5 Obligor and 3% for each other Tier-5
Obligor;
provided that TRI may, by notice thereof in any Settlement Statement (and after
satisfying the Rating Agency Condition) and so long as no Liquidation Event or
Unmatured Liquidation Event has occurred, increase or decrease the percentages
set forth in
-11-
95
the foregoing clauses for all subsequent Collection Periods (until further
changed in accordance with the terms hereof). Any such change to the foregoing
percentages shall result in a corresponding change to the Concentration Factor
and hence in the Minimum Required Reserve Ratio, as set forth in the definitions
thereof.
"Excess Foreign Obligor Balances" shall mean an amount calculated (without
duplication) as follows:
(a) determine the aggregate Outstanding Balance of Eligible Receivables
owed by each Foreign Obligor;
(b) determine the Excess Concentration Balance for each Foreign Obligor;
(c) for each Foreign Obligor, determine the excess of the amount
determined pursuant to clause (a) over the amount determined pursuant
to clause (b);
(d) determine the sum of the amounts determined pursuant to clause (c) for
all Foreign Obligors;
(e) determine an amount equal to 5% of the aggregate Outstanding Balance
of Eligible Receivables;
(f) determine the portion of the amount determined pursuant to clause (d)
representing Eligible Receivables owed by Obligors located in
countries which carry a sovereign debt rating from the Rating Agency
of BBB- or below;
(g) determine the excess (if any) of the amount determined pursuant to
clause (f) over the amount determined pursuant to clause (e);
(h) determine the excess of the amount determined pursuant to clause (d)
over the amount determined pursuant to clause (g);
(i) determine an amount equal to 10% of the aggregate Outstanding Balance
of Eligible Receivables;
(j) determine the excess (if any) of the amount determined pursuant to
clause (h) over the amount determined pursuant to clause (i);
(k) determine the sum of the amounts determined pursuant to clauses (j)
and (g), which shall be the "Excess Foreign Obligor Balances."
"Excess Funding Account" shall have the meaning ascribed to that term in
Section 8.01(a) of the RPA.
-12-
96
"Excess Funding Reserve" shall mean, on any day prior to the Liquidation
Period on which the Adjusted Invested Amount exceeds the Base Amount, the amount
of such excess.
"Excess Government Obligor Balances" shall mean, as of any date, the dollar
amount by which the result of (i) the aggregate Outstanding Balances of Eligible
Receivables that are owing from Government Obligors minus (ii) the Excess
Concentration Balances of such Obligors, exceeds two percent (2%) of the
aggregate Outstanding Balances of all Eligible Receivables as of such date.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Exchange Date" shall have the meaning ascribed to that term in Section
10.16(c) of the RPA.
"First Tier RPSA" means the Receivables Purchase and Sale Agreement, dated
as of January 31, 2000, among Sellers and Xxxxxx, as the same may be amended,
restated or otherwise modified from time to time.
"Fixed Period" shall mean each period from one Settlement Date to but
excluding the next succeeding Settlement Date; provided, however, that the first
Fixed Period shall be the period from the date on which the Certificates are
issued to but excluding the first Settlement Date.
"Force Majeure Event" shall mean, with respect to any Person, any riots,
acts of God or the public enemy, acts of war, acts of terrorists, epidemics,
fire, equipment or power failures, flood, embargoes, weather, earthquakes or
similar events beyond the control of such Person.
"Foreign Obligor" shall mean any Obligor that is not a resident of, and
does not have a place of business in, a state of the United States of America,
the District of Columbia or the Commonwealth of Puerto Rico.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as set forth from time to time in the opinions and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by significant segments of
the accounting profession.
"Global Certificate" means a Certificate issued to the Clearing Agency
registered in the name of the Clearing Agency or its nominee in accordance with
Section 10.16 of the RPA.
"Government Obligor" shall mean any Obligor that is the United States of
America, any state of the United States of
-13-
97
America, any municipality of the United States of America or any department,
agency or instrumentality of any of the foregoing.
"Indebtedness" shall mean on any date, for any Person, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person to pay the deferred purchase price of property or services, except
trade accounts payable arising in the ordinary course of business which are
payable according to ordinary business terms, (iii) all obligations of such
Person as lessee under leases which shall have been, or should be, in
accordance with GAAP, recorded as capital leases, and (iv) all obligations of
such Person under direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (i) through (iii) above.
"Indemnified Amounts" shall have the meaning ascribed to such term in
Section 9.02 of the RPA.
"Initial Interest Payment Date" shall mean the Settlement Date in February,
2000.
"Initial Sellers" shall mean Thermal Dynamics Corporation, a Delaware
corporation; Thermadyne International Corp., a Delaware corporation, Tweco
Products, Inc., a Delaware corporation, Stoody Company, a Delaware corporation;
Xxxxxx Gas Systems, Inc., a Delaware corporation; Thermal Arc, Inc., a Delaware
corporation; and C&G Systems, Inc., an Illinois corporation.
"Insolvency Event" shall mean, with respect to any Person, the institution
of any case or proceeding by or against such Person seeking to adjudicate it as
bankrupt or insolvent, or seeking liquidation, dissolution, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property.
"Institutional Accredited Investor" shall mean an institution which is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of the
Securities Act (other than a Qualified Institutional Buyer).
"Interest" shall mean, with respect to any Fixed Period, the return on
investment payable to the Investors for such Fixed Period pursuant to Section
3.01 of the RPA.
-14-
98
"Invested Amount" shall mean, at any time, the outstanding unrecovered
amount of the cash purchase price paid by the Investors for the Certificates.
"Investment" shall mean, with respect to any Person, any direct or indirect
investment by such Person in any other Person, whether by means of share
purchase, capital contribution, loan or otherwise, excluding the incurrence of
receivables arising from sales made or services rendered in the ordinary course
of business and excluding commission, travel and similar advances to officers
and employees made in the ordinary course of business.
"Investor" shall mean a Person that holds a Certificate, it being
understood that the holder of a Global Certificate is the Person in whose name
such Global Certificate is registered in the Certificate Register.
"IRS" shall mean the Internal Revenue Service and any successor thereto.
"Letter of Representations" shall mean, with respect to any Clearing
Agency, a Letter of Representations or similar document, in such Clearing
Agency's customary form, executed by the Trustee and TRI and such Clearing
Agency in connection with the issuance of Global Certificates.
"LIBO Rate" shall mean, with respect to a Fixed Period (other than the
first Fixed Period), an interest rate (equal to the average of the rates) at
which one-month Dollar deposits in immediately available funds are offered by
prime banks in the interbank eurodollar market at 11:00 a.m., London, England
time, two (2) Business Days prior to the first day of such Fixed Period for
delivery on such first day, as shown on page 3750 of the Telerate Screen (or, if
no such rate shall be quoted on the Telerate Screen, in The Wall Street
Journal). The Servicer shall determine the LIBO Rate with respect to each Fixed
Period and promptly notify the Trustee thereof in writing. The LIBO Rate for the
first Fixed Period shall be the rate set forth on Schedule 1.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, security interest, lien (statutory
or other and including liens in favor of the PBGC or the IRS), or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement, the interest of a lessor under a capitalized lease
obligation, any financing lease having substantially the same economic effect as
any of the foregoing and the filing of any financing statement, naming the owner
of the asset to which such Lien relates as debtor, under the UCC or comparable
law of any jurisdiction).
-15-
99
"Liquidation Event" shall mean any one of the following events:
(a) Failure by TRI to pay the principal amount of, or any Interest on,
any Certificate which failure continues unremedied for five (5) Business
Days; or failure by any Seller, Xxxxxx, Thermadyne or TRI to pay any other
amount due under the Program Documents (other than the failure to pay any
amount due from such entity to the Servicer if the Servicer is Xxxxxx or
any Affiliate thereof), which failure continues unremedied (A) in the case
of Early Termination Amounts, for thirteen (13) Business Days, and (B) in
the case of all payments not otherwise described above, for fifteen (15)
Business Days, and in the case of each of the foregoing (other than failure
to pay any principal or Interest) after the date on which an Authorized
Officer of such Seller, Xxxxxx, Thermadyne or TRI (as applicable) has
actual knowledge of such failure; provided, however, that if TRI, Xxxxxx,
Thermadyne and/or a Seller is unable to make a payment described above as a
result of a Force Majeure Event, then the time periods described above
shall be extended for so long as such Force Majeure Event renders TRI,
Xxxxxx, Thermadyne or such Seller unable to make such payment, but in no
event shall such extension exceed ten (10) Business Days;
(b) Any representation or warranty made by TRI (whether individually
or in its capacity as the Collection Agent), Xxxxxx (whether individually
or in its capacity as the Servicer), Thermadyne or a Seller under or in
connection with any Program Document, any Daily Report, any Settlement
Statement or other report, certificate, financial statement or information
furnished by TRI, Xxxxxx, Thermadyne or such Seller pursuant to the Program
Documents shall prove to have been false or incorrect in any material
respect when made; provided, however, that the mistaken representation of a
Receivable as an Eligible Receivable shall not constitute a Liquidation
Event unless TRI, Xxxxxx and Thermadyne are required to make the cash
payments under the RPA and the Second Tier RPSA in respect of the indemnity
obligation or Noncomplying Receivables Adjustment arising from such
misrepresentation and shall have failed to make such payments within the
time required under the RPA and/or the Second Tier RPSA (it being
understood that non-cash adjustments may be made with respect to certain of
such misrepresentations under such documents); or
(c) Either (i) Xxxxxx, Thermadyne or a Seller shall fail to perform or
observe any other term, provision, covenant, condition or agreement
contained in any Program Document on its part to be performed or
-16-
100
observed (other than those covered by the other subsections of this
definition) and any such failure shall remain unremedied for thirty (30)
days after written notice thereof shall have been given by TRI or the
Trustee to Xxxxxx, Thermadyne or such Seller (as applicable) or (ii) TRI
shall fail to perform or observe any term, provision, covenant, condition
or agreement contained in any Program Document on its part to be performed
or observed (other than those covered by the other subsections of this
definition) and any such failure shall remain unremedied for thirty (30)
days after written notice thereof shall have been given to TRI by the
Trustee; or
(d) An Insolvency Event shall have occurred with respect to Xxxxxx,
Thermadyne, a Seller or TRI; provided, however, that if such Insolvency
Event arises as a result of an involuntary bankruptcy petition being filed
against Xxxxxx, Thermadyne or a Seller, the event described in this clause
(d) shall not mature into a Liquidation Event unless and until (i) such
proceeding shall continue undismissed for a period of sixty (60) days, (ii)
an order of relief shall be entered in such proceeding, or (iii) Xxxxxx,
Thermadyne or such Seller (as the case may be) shall acquiesce in such
proceeding, whichever is earliest; and provided, further, that if such
Insolvency Event arises as a result of an involuntary bankruptcy petition
being filed against TRI, the event described in this clause (d) shall not
mature into a Liquidation Event unless and until (i) such proceeding shall
continue undismissed for a period of ten (10) days, (ii) an order of relief
shall be entered in such proceeding, or (iii) TRI shall acquiesce in such
proceeding, whichever is earliest; or
(e) Xxxxxx shall cease to own directly one hundred percent (100%) of
the issued and outstanding shares of TRI free and clear of any Liens
(except Permitted Liens); or
(f) Either the IRS or the PBGC shall have filed notice of one or more
Liens against any Receivables, unless such claims are contested in good
faith by appropriate proceedings and bonded in a manner satisfactory to the
Trustee; or
(g) Either (i) the Servicer shall fail to perform or observe any term,
provision, covenant, condition or agreement contained in Article V of the
Second Tier RPSA (other than as referred to in other clauses of this
definition, except clause (c)) or any other provision of any Program
Document to be performed or
-17-
101
observed on its part or (ii) the Collection Agent shall fail to perform or
observe any term, provision, covenant, condition or agreement contained in
Article VIII of the RPA (other than as referred to in other clauses of this
definition, except clause (c)) or any other provision of any Program
Document to be performed or observed on its part and any such failure shall
remain unremedied for ten (10) Business Days after written notice thereof
shall have been given by TRI or the Trustee to the Servicer or by the
Trustee to the Collection Agent, as applicable; or
(h) Any of the following shall occur: (i) Xxxxxx shall cease to have a
valid first-priority ownership interest in the Receivables or Related
Security conveyed to it by any Seller or Collections therefrom (subject,
however, to the interests of TRI, the Trustee and the Investors and other
Permitted Liens); (ii) TRI shall cease to have a valid first-priority
ownership interest in the Receivables, all Related Security or Collections
therefrom (subject, however, to the interests of the Trustee and the
Investors and other Permitted Liens); or (iii) the Investors or the Trustee
shall cease to have a valid first-priority ownership or security interest
in the Transferred Assets (including the Receivables, all Related Security
or Collections therefrom but subject, however, to Permitted Liens); or
(i) The Adjusted Invested Amount shall exceed the Base Amount for a
period of five (5) or more consecutive Business Days; or
(j) Any proceedings shall have commenced and shall be continuing to
foreclose upon any Lien or other encumbrance on any Transferred Assets; or
(k) TRI shall become an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
"Liquidation Period" shall mean the period commencing on the date on which
Victor's obligation to sell and TRI's obligation to purchase Receivables under
the Second Tier RPSA terminates and continuing until the Collection Date. The
Liquidation Period shall commence on the earliest to occur of:
(i) the Scheduled Liquidation Commencement Date;
(ii) the occurrence and continuance of a Liquidation Event described
in clause (d) or clause (k) of the definition thereof;
-18-
102
(iii) the eleventh (11th) Business Day following the occurrence and
during the continuance of a Liquidation Event described in clause (a) of
the definition thereof unless waived by the Majority Investors prior to
such eleventh (11th) Business Day; provided however, that, if the Required
Investors shall have voted to commence the Liquidation Period prior to such
eleventh (11th) Business Day, the Liquidation Period shall commence on the
date such vote becomes final;
(iv) the fifth (5th) Business Day following the occurrence of a
Liquidation Event described in clause (i) of the definition thereof, unless
during such five (5) day period: (A) the Adjusted Invested Amount shall
become equal to or smaller than the Base Amount and (B) the Required
Investors vote to waive such Liquidation Event; provided, however, that if
the Required Investors shall have voted to commence the Liquidation Period
prior to such fifth (5th) Business Day, the Liquidation Period shall
commence on the date such vote becomes final.
(v) the eleventh (11th) Business Day following the day on which an
Authorized Officer of any Seller or Xxxxxx has actual knowledge of the
occurrence of a Liquidation Event described in clause (h) of the definition
thereof, unless prior to such eleventh (11th) Business Day the Required
Investors shall have waived the occurrence of such event or such event is
cured (without prejudice to the Investors) prior to such eleventh (11th)
Business Day; and
(vi) the date designated by all Sellers or Xxxxxx to TRI and the
Trustee by not less than ten (10) days nor more than sixty (60) days prior
written notice as the date on which the sales of Receivables to Xxxxxx or
TRI, as applicable shall cease.
"Lockbox Account" shall mean any lockbox account or other depositary
account maintained for the purpose of receiving Collections on the Receivables.
"Lockbox Agreement" shall mean the Three-Party Agreement relating to the
Lockbox Services, dated as of January 31, 2000, among TRI, the Trustee and Bank
of America, N.A.
"Lockbox Bank" shall mean any of the banks holding one or more Lockbox
Accounts.
"Loss Discount" shall mean, with respect to any Seller or Xxxxxx, a
fraction the numerator of which is the aggregate Outstanding Balance of
Receivables originated by such Seller or Xxxxxx (net of recoveries) that were
written off (in each case determined in a manner that is consistent with the
Credit and Collection Policy) as uncollectible or (without duplication)
-19-
103
converted into Receivables Notes during the three (3) preceding Collection
Periods in accordance with the Credit and Collection Policy, and the denominator
of which is the aggregate amount of Collections on the Receivables originated by
such Seller or Xxxxxx during such three (3) Collection Periods. The Loss
Discount calculated in any Settlement Statement shall be the applicable Loss
Discount from the Settlement Date relating thereto until the next Settlement
Date. The Loss Discount from the Effective Date until the first Settlement Date
shall be as set forth in Schedule 1 hereto and the underlying calculations for
each of the three calendar months preceding the first Settlement Date to be used
in future calculations of the Loss Discount shall be as set forth in such
Schedule 1.
"Loss Reserve Ratio" shall mean, commencing on any Settlement Date and
continuing until (but not including) the next Settlement Date, an amount
(expressed as a percentage) calculated in accordance with the following formula:
LRR = 2.5 x ARR x b x PTM
where:
LRR = the Loss Reserve Ratio;
ARR = the highest average of the Aged Receivables Ratios for any three (3)
consecutive Collection Periods that occurred during the period of
twelve (12) consecutive Collection Periods ending on the most recent
Cut-Off Date;
b = a fraction having (A) a numerator equal to the sum of the Original
Balances of Receivables during the three (3) Collection Periods
preceding or ending on the most recent Cut-Off Date, as determined
on the Cut-Off Dates for such Collection Periods, and (B) a
denominator equal to the aggregate Outstanding Balance of all
Receivables as calculated on the most recent Cut-Off Date; and
PTM = with respect to any Receivable, (a) 1.0, if the Payment Term
Variable is less than 36; (b) 1.1, if the Payment Term Variable is
greater than or equal to 37, but less than 39; and (c) 1.17, if the
Payment Term Variable is greater than or equal to 40, but less than
45; (d) 1.22, if the Payment Term Variable is greater than or equal
to 46, but less than 50; (e) 1.28, if the Payment Term Variable is
greater than or equal to 51, but less than 55; (f) 1.33, if the
Payment Term Variable is greater than or equal to 56, but less than
60; (g) 1.38, if the
-20-
104
Payment Term Variable is greater than or equal to 61 but less than
65; provided that if the Payment Term Variable equals or exceeds 65,
PTM for such Receivable shall be determined by calculating the sum
of (x) 1.38 and (y) 0.05, for each five (5) day increment by which
the Payment Term Variable exceeds 65, it being understood that the
same number shall apply for all Payment Term Variables that fall
within a five (5) day range.
The Loss Reserve Ratio calculated in any Settlement Statement shall be the
applicable Loss Reserve Ratio from the Settlement Date relating thereto until
the next Settlement Date. The Loss Reserve Ratio from the Effective Date until
the first Settlement Date, and the underlying calculations for each of the
twelve (12) calendar months preceding the first Settlement Date to be used in
future calculations of the Loss Reserve Ratio, shall be as set forth in Schedule
1 hereto.
"Majority Investors" means Investors owning Certificates evidencing more
than fifty percent (50%) of the Invested Amount.
"Management Agreement" means the Management Agreement, dated as of a date
on or around the Effective Date, between TRI and Xxxxxx, as the same may be
amended, restated or otherwise modified from time to time.
"Material Adverse Effect" shall mean (i) any material adverse effect upon
the condition (financial or otherwise), operations or properties of TRI, (ii)
any material adverse effect upon the validity or enforceability of the Program
Documents or (iii) any adverse effect which, by itself or when taken together
with all other such adverse effects, would have a materially adverse effect on
the validity, enforceability and collectibility of the Receivables and the other
Transferred Assets taken as a whole (including, without limitation, any such
adverse effect on collectibility which arises as a result of Victor's or TRI's
inability to perform its duties as Servicer or as Collection Agent).
"Maturity Date" shall mean the Settlement Date in February, 2004.
"Member Organization" shall have the meaning ascribed to that term in
Section 10.16(c) of the RPA.
"Minimum Required Reserve Ratio" shall mean the sum of:
(i) a fraction (expressed as a percentage) having (A) a numerator of which
is the Concentration Factor as of the most recent Cut-Off Date, and
(B) a denominator of
-21-
105
which is the aggregate Outstanding Balance of Eligible Receivables as
of such Cut-Off Date; and
(ii) an amount (expressed as a percentage) equal to the average Dilution
Ratios for a period of twelve (12) Collection Periods ending on the
most recent Cut-Off Date multiplied by DHV, as such term is used in
the definition of Dilution Reserve Ratio.
The Minimum Required Reserve Ratio calculated in any Settlement Statement shall
be the applicable Minimum Required Reserve Ratio from the Settlement Date
relating thereto until the next Settlement Date. The Minimum Required Reserve
Ratio from the Effective Date until the first Settlement Date shall be as set
forth in Schedule 1 hereto.
"Net Eligible Receivables" shall mean the aggregate Outstanding Balances of
Eligible Receivables as reported in the most recent Daily Report minus the sum
of (i) the aggregate amount of the Excess Concentration Balances for each
Specified Obligor and its Consolidated Affiliates then in effect, (ii) the
Excess Foreign Obligor Balances then in effect, (iii) the Excess Government
Obligor Balances then in effect, (iv) Unapplied Cash, (v) Volume Rebate
Accruals, (vi) the Trustee Reserve Amount and (vii) the dollar amount of any
Liens which attach to all of the Receivables unless such Liens (x) are for
taxes, assessments or charges of any governmental authority for amounts not yet
due or (y) are being contested in good faith by appropriate proceedings and
bonded in a manner satisfactory to the Trustee;
"Noncomplying Receivable" shall mean a Receivable which was not an Eligible
Receivable as of the date it was purchased by TRI from Xxxxxx, unless it shall
have been identified in the Daily Report for such date as not being an Eligible
Receivable.
"Noncomplying Receivables Adjustment" shall mean:
(x) with respect to any Receivables which are identified on any date
to Xxxxxx by TRI as Noncomplying Receivables, the amounts owed by Xxxxxx to
TRI pursuant to Section 2.02(f) of the Second Tier RPSA, which amounts
shall equal (i) the Purchase Price of such identified Noncomplying
Receivables, minus (ii) the aggregate amount of Collections received by TRI
with respect to any such Noncomplying Receivables and minus (iii) the
aggregate amount of Collections received by TRI with respect to any
Noncomplying Receivables, which were previously reported to be Noncomplying
Receivables and on account of which Noncomplying Receivables Adjustments
were previously; and
(y) with respect to any Receivables which are identified on any date
to a Seller by Xxxxxx as NonComplying Receivables, the amounts owed by such
Seller to
-22-
106
Xxxxxx pursuant to Section 2.02(e) of the First Tier RPSA, which amount
shall equal (i) the Purchase Price of such identified Noncomplying
Receivables, minus (ii) the aggregate amount of Collections received by
Xxxxxx with respect to any such Noncomplying Receivables and minus (iii)
the aggregate amount of Collections received by Xxxxxx with respect to any
Noncomplying Receivables of such Seller which were previously reported to
be Noncomplying Receivables and on account of which Noncomplying
Receivables Adjustments were previously made by such Seller.
"Obligations" shall have the meaning ascribed to such term in Section 2 of
the Security Agreement.
"Obligor" shall mean any Person obligated to make payments in respect of a
Receivable.
"Offering Memorandum" shall mean that certain Offering Memorandum dated
January 31, 2000 (as the same may have been supplemented or otherwise updated
prior to the Effective Date), with respect to the transactions contemplated
under the Program Documents.
"Ordinary Course Expenses" shall mean the expenses of TRI for the
allocation of employee salaries, benefits, directors' fees, office lease
payments, office supplies, and other amounts owed under the Management Agreement
or any other Company Document, fees owed to the Lockbox Banks, Federal, state
and local taxes and similar expenses incurred in the ordinary course of its
business other than (a) interest expense under the Xxxxxx Purchase Price Note
and (b) other Carrying Costs specifically mentioned in the definition of
Carrying Costs.
"Original Balance" shall mean, with respect to any Receivable, the face
amount of such Receivable on the date it was purchased by TRI, which face amount
shall have been reflected in the Daily Report for such date.
"Outside Accountants" shall mean (i) Ernst & Young LLP, (ii) any other Big
5 Firm or (iii) subject to the satisfaction of the Requisite Conditions, any
other independent certified public accountants of recognized national standing
selected by TRI.
"Outstanding Balance" shall mean, with respect to any Receivable at any
time, the then outstanding face amount thereof, which is calculated by
subtracting the Collections, Dilution and Write-Offs relating to such
Receivable from the Original Balance of such Receivable.
"Owner Req 5 Certification" shall have the meaning ascribed to that term in
Section 10.09(i)(i) of the RPA.
-23-
107
"Participation Interest" shall mean an undivided percentage interest in the
Transferred Assets transferred by TRI to the Trustee pursuant to Article II of
the RPA and "Participation Interests" shall mean, collectively, the aggregate of
such undivided percentage interests in the Transferred Assets, which
Participation Interests shall be calculated daily (until the commencement of the
Liquidation Period) in accordance with the following formula (but in no event
shall exceed 100%)
PI = IA
--
BA
where:
PI = the Participation Interests;
IA = the Invested Amount; and
BA = the Base Amount.
The Participation Interests shall be calculated as of the close of business on
the Business Day immediately preceding the commencement of the Liquidation
Period and shall not be subject to further recalculation thereafter.
"Paying Agent" shall mean any paying agent appointed pursuant to the RPA
which initially shall be the Trustee.
"Payment Term Variable" shall mean, as calculated in each Settlement
Statement as of the most recently ended Cut-Off Date, the quotient of: (x) the
sum of (i) the product of the Outstanding Balance of each Receivable as of such
Cut-Off Date times (ii) the number of days between the invoice date and the due
date with respect to such Receivable; divided by (y) the aggregate Outstanding
Balance of all Receivables as of such CutOff Date.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
successor thereto.
"Permitted Investments" shall mean any one or more of the following:
(i) marketable securities issued or directly and unconditionally
guaranteed by the United States of America maturing on or before the
Settlement Date following the date of acquisition thereof;
(ii) marketable securities issued by any agency of the United States
of America maturing on or before the Settlement Date following the date of
acquisition thereof;
(iii) marketable direct obligations issued by any state of the United
States of America or any political
-24-
108
subdivision of any such state or any public instrumentality thereof
maturing on or before the Settlement Date following the acquisition thereof
and, at the time of acquisition, having the highest rating obtained from
the Rating Agency;
(iv) time deposits maturing on or before the Settlement Date following
the acquisition thereof or certificates of deposit (including domestic,
Eurodollar and Yankee certificates of deposit) or deposit notes or bankers'
acceptances maturing on or before the Settlement Date following the
acquisition thereof, in each case issued by or deposited in, as the case
may be, any commercial bank and in each case having a short term debt
rating of A-1+ (or the equivalent) from the Rating Agency;
(v) commercial paper maturing on or before the Settlement Date
following the acquisition thereof, having a short term debt rating of A-1+
(or the equivalent) from the Rating Agency;
(vi) promissory notes (including both non-interest bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date, or having a call date on or before the Settlement Date
following the acquisition thereof), having a long term (secured or
unsecured) debt rating of at least AAA (or the equivalent) from the Rating
Agency;
(vii) repurchase obligations with terms of not more than seven (7)
days from the date acquired, which obligations are collateralized by
securities of the type described in clauses (i) and (ii) above in an amount
not less than one hundred two percent (102%) of such obligations and each
counterparty in respect of which is an entity which is monitored by,
reports to, and is recognized as a primary dealer by the Federal Reserve
Bank of New York (a "Primary Dealer") having a minimum long term debt
rating of AAA (or the equivalent) by the Rating Agency; provided that all
such collateral be held in a custody account designated by TRI; and
(viii) investments in money market funds rated AAA-m or AAA-mg by the
Rating Agency or otherwise approved in writing by the Rating Agency;
provided that all investments described in this clause (viii) shall be
deemed to have a daily maturity.
"Permitted Liens" shall mean (i) Liens for taxes, assessments or charges of
any governmental authority for amounts not yet delinquent or which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance with GAAP; (ii) Liens of landlords, carriers,
-25-
109
warehousemen, mechanics and materialmen imposed by law and created in the
ordinary course of business for amounts not yet due or which are being contested
in good faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained in accordance with
GAAP; and (iii) Liens on the outstanding capital stock of TRI, Seller Purchase
Price Notes and the Xxxxxx Purchase Price Note; provided that no enforcement
action shall have been taken with respect to such Liens, and title to such
assets shall remain in Xxxxxx and Sellers (as applicable).
"Person" shall mean an individual, partnership, corporation (including a
business trust), joint stock company, limited liability company, trust,
unincorporated association, joint venture, government (or any agency or
political subdivision thereof) or other entity.
"Placement Agent" shall mean ABN ANRO Incorporated.
"Placement Agent Exchange Instructions" shall have the meaning ascribed to
that term in Section 10.09(i)(iv) of the RPA.
"Placement Agreement" means the Placement Agreement dated as of January 31,
2000 among Thermadyne, TRI and the Placement Agent, as the same may be amended,
restated or otherwise modified from time to time.
"Prepayment Account" has the meaning assigned to that term in Section
8.01(a) of the RPA.
"Prepayment Amount" shall mean, with respect to any prepayment for which
TRI has given notice under Section 3.04 of the RPA, the sum of (i) the
principal amount to be prepaid, (ii) Interest accrued on such principal amount
through the next Settlement Date and (iii) any Early Termination Amounts
required to be paid under Section 3.04 of the RPA in connection with such
prepayment.
"Pro Rata Share" means, with respect to an Investor, a fraction, the
numerator of which is the aggregate principal amount of Certificates held by
such Investor and the denominator of which is the aggregate principal amount of
all Certificates.
"Program" means the transactions contemplated by the Program Documents.
"Program Accounts" has the meaning assigned to that term in Section 8.01 of
the RPA.
"Program Amount" means, at any time, (i) $______________ plus (ii) the
aggregate principal amount of Certificates issued pursuant to the second
sentence of Section 10.08(b) of the RPA,
-26-
110
minus (iii) the aggregate principal amount of Certificates that shall have been
paid in full.
"Program Documents" means the First Tier RPSA, the Second Tier RPSA, the
RPA, the Security Agreement, the Lockbox Agreement, the Software Agreement, the
Management Agreement, the Seller Purchase Price Note, and the Xxxxxx Purchase
Price Note, the Certificates, and any UCC finance statements signed by Sellers
in favor of Xxxxxx, or signed by Xxxxxx in favor of TRI, or signed by TRI in
favor of the Trustee.
"Publication Date" has the meaning ascribed to that term in Section 9.01(b)
of the RPA.
"Purchase" shall mean (i) when used with respect to the First Tier RPSA, a
purchase by Xxxxxx with regard to Acquired Assets from Sellers made pursuant to
Article II thereof; (ii) when used with respect to the Second Tier RPSA, a
purchase by TRI with regard to the Purchased Assets made from Xxxxxx pursuant to
Article II thereof; and (iii) when used with respect to the RPA, a conveyance of
the Transferred Assets to the Trustee for the benefit of the Investors with
regard to Participation Interests made pursuant to Article II thereof.
"Purchase Discount Rate Reserve Ratio" shall mean, with respect to any
Seller or Xxxxxx, a percentage calculated in the most recent Settlement
Statement in accordance with the following formula:
PDRR = TD x (DR + PD)
---
360
where:
PDRR = the Purchase Discount Rate Reserve Ratio;
TD = the Turnover Days for Receivables generated by such Seller or (in
the case of a calculation with respect to Xxxxxx) all Sellers
during the prior Collection Period;
DR = the Discount Rate; and
PD = a profit discount equal to 0.25%.
"Purchase Price" shall mean, with respect to any Purchase under either
RPSA, the aggregate price to be paid by TRI to Xxxxxx or by Xxxxxx to the
applicable Seller, which price shall be computed by multiplying the aggregate
Original Balances of the Receivables included in such Purchase by the then
effective Purchase Price Percentage applicable to Xxxxxx or such Seller, as such
amount may be adjusted to reflect any Dilution Adjustment or
-27-
111
Noncomplying Receivables Adjustment calculated for the applicable date of
Purchase pursuant to Section 2.02 of the applicable RPSA.
"Purchase Price Percentage" shall mean, with respect to Xxxxxx or any
Seller, a percentage calculated in the most recent Settlement Statement to equal
one hundred percent (100%), minus the sum of (i) the Loss Discount calculated
with respect to Xxxxxx or such Seller and (ii) the Purchase Discount Rate
Reserve Ratio calculated with respect to Xxxxxx or such Seller, as each such
ratio has been computed in such Settlement Statement. The Purchase Price
Percentage calculated in any Settlement Statement shall be the applicable
Purchase Price Percentage from the Settlement Date relating thereto until the
next Settlement Date. From the Effective Date to the first Settlement Date, the
applicable Purchase Price Percentage for Xxxxxx and each Seller shall be as set
forth in Schedule 1 hereto.
"Purchased Assets" shall have the meaning ascribed to that term in Section
2.01(a) of the Second Tier RPSA.
"Qualified Institutional Buyer" has the meaning given such term in Rule
144A.
"Qualified Letter of Credit" shall mean a letter of credit or guaranty that
(x) is issued by a domestic banking institution rated at least A by the Rating
Agency and (y) either has been assigned to the Trustee or as to which the
issuing banking institution has been irrevocably instructed to pay the proceeds
of any drawing to the Collection Account.
"Rating Agency" shall mean Standard & Poor's Ratings Group, a division of
The XxXxxx-Xxxx Companies ("Standard & Poor's") or any successor rating agency
acceptable to the Majority Investors which issues a rating letter with respect
to the Certificates in substitution for Standard & Poor's. If Standard & Poor's
is replaced as the Rating Agency, references to particular ratings shall mean
the corresponding rating of such successor Rating Agency.
"Rating Agency Condition" means, with respect to any circumstance or event,
confirmation from the Rating Agency in writing that the circumstance or event
will not result in a lowering or withdrawal of the rating of the Certificates.
"Receivable" shall mean all indebtedness of an Obligor (whether
constituting an account, chattel paper, or general intangible) arising from the
sale of merchandise or the furnishing of services by a Seller or Xxxxxx,
including all interest or finance charges and other obligations of such Obligor
with respect thereto, but excluding any such indebtedness which is not
denominated in Dollars. Each Write-Off and each Receivable Note shall continue
to constitute a Receivable until the indebtedness of the Obligor thereunder
shall have been paid in
-28-
112
full, extinguished by agreement between the applicable Seller or Xxxxxx and such
Obligor or otherwise extinguished pursuant to applicable law.
"Receivable Notes" means any promissory notes issued by an Obligor to
evidence a Receivable.
"Record Date" means the last day of each calendar month.
"Records" shall mean all Contracts and other documents, books, records and
other media for the storage of information (including, without limitation,
tapes, disks, computer programs and databases and related property) maintained
with respect to the Receivables and the related Obligors.
"Regulation D" shall mean Regulation D promulgated under the Securities
Act.
"Regulation S" shall mean Regulation S promulgated under the Securities
Act.
"Regulation S Global Certificates" shall have the meaning ascribed to that
term in Section 10.16(c) of the RPA.
"Regulation 5 Temporary Global Certificates" shall have the meaning
ascribed to that term in Section 10.16(c) of the RPA.
"Regulations T, U and X" shall mean Regulations T, U and X, respectively,
as promulgated by the Board, or any similar regulations substituted for any of
the foregoing.
"Related Security" shall mean with respect to any Receivable:
(i) all of the applicable Seller's or Victor's rights under the
Contracts;
(ii) all guarantees, indemnities, warranties, chattel paper, insurance
policies and proceeds and security agreements and other 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; and
(iii) all of the applicable Seller's or Victor's residual right, title
and interest in and to all goods and/or merchandise (including returned,
repossessed or foreclosed goods and/or merchandise) the sale of which gave
rise to such Receivable;
(iv) all of the applicable Seller's or Victor's rights in, to and
under the (A) Records, (B) instruments, checks and other forms of payment
and (C) general
-29-
113
intangibles relating to such Receivable, and under all license agreements
relating to software used in the administration or collection of such
Receivable;
(v) when used with respect to TRI, all of TRI's right, title and
interest to and rights under the Second Tier RPSA and (as assignee of
Xxxxxx) the First Tier RPSA;
(vi) when used with respect to Xxxxxx, all of Victor's right, title
and interest to and rights under the First Tier RPSA; and
(vii) all proceeds of the foregoing.
"Reported Obligors" shall mean, at any time with respect to Xxxxxx and each
Seller, any Obligor (or group of Obligors) that owes an aggregate Outstanding
Balance of Eligible Receivables to Xxxxxx or such Seller (as the case may be) as
of the then most recent Cut-Off Date that is at least one percent (1.0%) of the
aggregate Outstanding Balance of all Eligible Receivables owed to Xxxxxx or such
Seller (as the case may be) as of such date. It is understood that each such
Obligor (or group of Obligors) will be a "Reported Obligor for the purpose of
identification of the Specified Obligors in the next Settlement Statement.
"Reporting Date" shall mean two (2) Business Days prior to the Settlement
Date.
"Required Investors" shall mean Investors owning Certificates evidencing
more than sixty-six and two-thirds percent (66 2/3%) of the Invested Amount.
"Requisite Conditions" shall mean, with respect to any action or event,
either (x) such action or event shall have been approved by the Trustee at the
direction of the Majority Investors or (y) the Rating Agency Condition will have
been satisfied with respect to such action or event.
"Responsible Officer" shall mean any officer within the Corporate Trust
Department or any successor group of the Trustee who has direct responsibility
for the administration of, or otherwise exercises discretion with respect to,
the RPA.
"RPA" shall mean that certain Receivables Participation Agreement dated as
of January 31, 2000 between TRI and the Trustee, as the same may be amended,
restated or otherwise modified from time to time.
"RPSA" shall mean the First Tier RPSA or the Second Tier RPSA.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
-30-
114
"Sale", "Sell" and "Sold" have the meanings ascribed to such terms in
Section 10.09(b) of the RPA.
"Sale Date" shall mean the first anniversary of the Termination Date.
"Scheduled Initial Principal Payment Date" means the Settlement Date in
October 2002.
"Scheduled Liquidation Commencement Date" means the Settlement Date in
November 2002.
"Second Tier RPSA" means the Receivables Purchase and Sale Agreement among
Xxxxxx, TRI and Thermadyne, as guarantor, as the same may be amended, restated
or otherwise modified from time to time.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Security Agreement" shall mean that certain Security Agreement dated as of
January 31, 2000 executed by TRI in favor of the Trustee, as the same may be
amended, restated or otherwise modified from time to time.
"Seller Adjustments" shall mean Noncomplying Receivables Adjustments and
Dilution Adjustments.
"Seller Purchase Price Note" means a promissory note issued by Xxxxxx in
favor of a Seller pursuant to Section 2.02(d) of the First Tier RPSA.
"Sellers" means the Persons identified as "Sellers" in the First Tier RPSA.
"Servicer" shall mean, at any time, the Person then authorized pursuant to
Article V of the Second Tier RPSA or Section 8.02(a) of the RPA, as applicable,
to service, administer and collect the Receivables on behalf of TRI.
"Servicer Fee" shall mean the fee paid to the Servicer by TRI pursuant to
Section 5.03(c) of the Second Tier RPSA.
"Servicer Termination Event" shall mean (i) a Liquidation Event or (ii) an
Unmatured Liquidation Event which arises from the gross negligence or willful
misconduct of the Servicer in the performance of its obligations under the
Second Tier RPSA.
"Settlement Date" shall mean, with respect to any Collection Period, the
15th calendar day of the next succeeding Collection Period, or if such day is
not a Business Day, then the immediately succeeding Business Day.
-31-
115
"Settlement Statement" shall mean a report prepared by the Servicer
pursuant to Section 5.03(b) of the Second Tier RPSA and signed by officers of
TRI and of the Collection Agent. Each Settlement Statement shall be in
substantially the form of Exhibit D-1 or Exhibit D-2, as applicable, to the
Second Tier RPSA.
"Significant Seller" shall mean, as of any date, a Seller which originated
Receivables which constitute five percent (5%)or more of the aggregate
Outstanding Balance of Eligible Receivables on such date.
"Software Agreement" shall mean, collectively, the software license
agreements, dated as of January 31, 2000, executed by (i) Sellers in favor of
Xxxxxx and (ii) Xxxxxx in favor of TRI, as the same may be amended, restated or
otherwise modified from time to time.
"Specified Number" means, with respect to any determination of the Discount
Rate Reserve, a number equal to two (2) times the Turnover Days as of the then
most recent Cut-Off Date.
"Specified Obligors" shall be the Obligors shown in the most recent
Settlement Statement identified by the following steps:
(i) determine the aggregate Outstanding Balance of Eligible
Receivables owed by each Obligor that is a Reported Obligor, which
aggregate Outstanding Balance shall include amounts owed to all Sellers
and to Xxxxxx, collectively, as of the most recent Cut-Off Date; and
(ii) identify (x) the ten (10) Reported Obligors for which the amount
determined in clause (i) is largest, and (y) each other Reported Obligor
for which the amount determined in clause (i) shall be at least one percent
(1%) of the aggregate Outstanding Balance of all Eligible Receivables.
The Reported Obligors identified in clauses (x) and (y) above shall be the
"Specified Obligors" for the period from the Settlement Date to which such
Settlement Statement relates to (but excluding) the next following Settlement
Date.
"Specified Settlement Date" shall mean, with respect to the determination
of the Discount Rate Reserve, the subsequent Settlement Date that is at least
the Specified Number of days following the date of determination.
"Stop Notice" shall have the meaning ascribed to that term in Section
9.01(b) (ii) of the RPA.
"Subsidiary" shall mean, as to any Person, any corporation or other entity
of which securities or other ownership interests
-32-
116
having ordinary voting power to elect a majority of the Board of Directors or
other Persons performing similar functions are at the time directly or
indirectly owned by such Person.
"Subsidiary Obligations" shall mean all the recourse obligations of Sellers
and Xxxxxx now or hereafter existing under or in connection with the RPSAs,
including, without limitation, obligations for all breaches of representations,
warranties and covenants, all obligations to remit any deemed Collections of
Receivables pursuant to the RPSAs, all fees, costs, expenses, taxes and
indemnifications owed under the RPSAs.
"Tax Opinion" means an opinion of counsel substantially in the form of the
opinion delivered pursuant to Section 4.01(xi)(A)(4) of the RPA.
"Terminating Seller" shall have the meaning ascribed to such term in
Section 2.07 of the First Tier RPSA.
"Termination Date" shall mean the date on which the Liquidation Period
commences.
"Thermadyne" means Thermadyne Mfg. LLC, a Delaware limited liability
company.
"Tier-1 Obligor" shall mean any Obligor (i) that has a commercial paper
rating from the Rating Agency of A-l+ or (ii) that does not have a commercial
paper rating but does have a senior actual or implied debt rating from the
Rating Agency of AAA.
"Tier-2 Obligor" shall mean any Obligor (other than a Tier-1 Obligor) (i)
that has a commercial paper rating from the Rating Agency of A-1 or (ii) that
does not have a commercial paper rating but does have a senior actual or implied
debt rating from the Rating Agency of at least A+.
"Tier-3 Obligor" shall mean any Obligor (other than a Tier-1 Obligor or a
Tier-2 Obligor) (i) that has a commercial paper rating from the Rating Agency of
A-2 or (ii) that does not have a commercial paper rating but does have a senior
actual or implied debt rating from the Rating Agency of at least BBB+.
"Tier-4 Obligor" shall mean any Obligor (other than a Tier-1 Obligor, a
Tier-2 Obligor or a Tier-3 Obligor) (i) that has a commercial paper rating from
the Rating Agency of A-3 or (ii) that does not have a commercial paper rating
but does have a senior actual or implied debt rating from the Rating Agency of
at least BBB-.
"Tier-5 Obligor" shall mean any Obligor which is not a Tier-1 Obligor, a
Tier-2 Obligor, a Tier-3 Obligor or a Tier-4 Obligor.
-33-
117
"Transfer Agent and Registrar" has the meaning ascribed to that term in
Section 10.09(a) of the RPA.
"Transfer to Regulation S Certification" has the meaning ascribed to that
term in Section 10.09(i)(iii) of the RPA.
"Transferee Reg S Certification" shall have the meaning ascribed to that
term in Section 10.09(i)(i) of the RPA.
"Transferor Interest" shall mean one hundred percent (100%) minus the
Participation Interests.
"Transferred Assets" shall have the meaning ascribed to such term in
Section 2.01 of the RPA.
"TRI" shall mean Thermadyne Receivables, Inc., a Delaware corporation.
"Trustee" means Bankers Trust Company in its capacity as trustee under the
RPA, and any successor thereto in such capacity.
"Trustee's Fees" shall mean the agent fees owed by TRI to the Trustee, as
described in Section 3.02 of the RPA.
"Trustee Reserve Amount" has the meaning provided in Section 8.07(a) of the
RPA.
"Turnover Days" shall mean, as calculated in any Settlement Statement, that
period (expressed in days) calculated as (a) the sum of the aggregate
Outstanding Balances of the Receivables as of the last three (3) Cut-Off Dates
divided by (b) the sum of the aggregate Original Balances of Receivables
generated during the corresponding Collection Periods multiplied by (c) thirty
(30) days. From the Effective Date until the first Settlement Statement, the
Turnover Days shall be calculated as set forth on Schedule 1, and the underlying
calculations for each of the three (3) Collection Periods preceding the first
Settlement Date to be used in future calculations of the Turnover Days shall be
as set forth in such Schedule 1.
"UCC" shall mean the Uniform Commercial Code as from time to time in effect
in the State of New York, except to the extent that the validity or perfection
of any Lien created under any Program Document or any remedy in respect thereof
is governed by the laws of a jurisdiction other than the State of New York, in
which case (but only to such extent) the term "UCC" shall mean the Uniform
Commercial Code as in effect in such other jurisdiction.
"Unapplied Cash" shall mean, at any time, cash received by the Trustee but
not then identified by the Servicer as Collections on a particular Receivable.
-34-
118
"Unmatured Liquidation Event" shall mean an event or condition which, with
the passage of time or the giving of notice or both, would constitute a
Liquidation Event.
"Unrestricted Global Certificate" shall have the meaning ascribed to that
term in Section 10.16(c) of the RPA.
"Xxxxxx" means Xxxxxx Equipment Company, a Delaware corporation.
"Xxxxxx Purchase Price Note" shall mean that certain subordinated
promissory note issued by TRI in favor of Xxxxxx pursuant to Section 2.02(e) of
the Second Tier RPSA.
"Volume Rebate Accruals" shall mean the aggregate amount of the unpaid
rebates required to be paid to the Obligors under the Volume Rebate Plans as of
the most recent Cut-Off Date, counting for this purpose only rebates for which
the related Obligors shall have satisfied all conditions to their entitlement to
the rebate under the relevant Volume Rebate Plan.
"Volume Rebate Offset" means any reduction to the Outstanding Balance of a
Receivable owed by an Obligor, as a result of any setoff of (x) amounts owed by
such Obligor against (y) the amounts owed to such Obligor pursuant to a Volume
Rebate Plan.
"Volume Rebate Plan" shall mean an incentive plan of a Seller or Xxxxxx
pursuant to which such Seller or Xxxxxx agrees to pay rebates to Obligors that
make aggregate purchasers in excess of certain levels within a specified time
period set forth in such plan.
"Write-Off" shall mean all or a portion of a Receivable that, consistent
with the Credit and Collection Policy, has been or should be (i) specifically
assigned to a category reserved for doubtful Receivables or otherwise recorded
on the books of the related Seller, Xxxxxx or TRI as a Receivable the
collectibility of which is doubtful or (without duplication) (ii) written off
such books as uncollectible.
-35-
119
SCHEDULE 1
to
ANNEX I
Chart of Assumed Values to be used from Effective Date
See Attached.
[See definitions of Aged Receivables Ratio,
Dilution Reserve Ratio,
Discount Rate, LIBO Rate, Loss Discount,
Loss Reserve Ratio,
Minimum Required Reserve Ratio,
Purchase Price Percentage, and Turnover Days.]
-36-
120
SCHEDULE 1
TO
ANNEX I
Chart of values to be used from Effective Date
Dilution Reserve Ratio 16.58%
Discount Rate
LIBO Rate(b)
Loss Discount(c) 0.00%
Write-offs (net recoveries)
Current Month 0
Preceding Month 1
Second Preceding Month 0
Receivables converted into Notes
Current Month 0
Preceding Month 0
Second Preceding Month 0
Collections
Current Month 30,553
Preceding Month 30,175
Second Preceding Month 30,493
Loss Reserve Ratio 14.88%
Minimum Required Reserve(d) 23.52%
Purchase Price Percentage(e)
Stoody 99.39%
Thermadyne International 97.62%
Thermal Dynamics 99.07%
Xxxxxx Equipment 99.17%
Tweco 99.24%
C&G Systems 98.75%
Thermal Arc 98.82%
Xxxxxx Gas Systems 99.17%
Turnover Days(f) 56
Ending Receivable Balance
Current Month 53,130
Preceding Month 54,374
Second Preceding Month 57,758
Gross Invoices/New Receivables
Current Month 30,400
Preceding Month 28,368
Second Preceding Month 29,601
-----------------
(a) The Discount Rate until the First Settlement Date
(b) The LIBO rate until the first Settlement Date
(c) The Loss Discount until the first Settlement Date and for the three calendar
months preceding the first Settlement Date
(d) The Minimum Required Reserve prior to the first Settlement Date
(e) The Purchase Price Percentage for each Seller and Xxxxxx until the first
Settlement Date
(f) The number to be used for Turnover Days until the first Settlement Date and
for the three Collection Periods prior to the First Settlement Date
121
SCHEDULE 4.0l(ix)
TO
RECEIVABLES PARTICIPATION AGREEMENT BETWEEN
THERMADYNE RECEIVABLES, INC., AS TRANSFEROR, AND BANKERS
TRUST COMPANY, AS TRUSTEE
--------------------------------------------------------------------------------
ENTITY (a) STATE OF FORMATION
(b) STATE(S) WHERE QUALIFIED AS
A FOREIGN ENTITY
--------------------------------------------------------------------------------
Thermadyne Mfg. LLC (a) Delaware
(b) Missouri
--------------------------------------------------------------------------------
Thermadyne Receivables, Inc. (a) Delaware
(b) Missouri
--------------------------------------------------------------------------------
Xxxxxx Equipment Company (a) Delaware
(b) Texas
--------------------------------------------------------------------------------
Thermal Dynamics Corporation (a) Delaware
(b) New Hampshire
--------------------------------------------------------------------------------
Thermadyne International Corp. (a) Delaware
(b) Kansas
California
--------------------------------------------------------------------------------
Tweco Products, Inc. (a) Delaware
(b) Kansas
California
--------------------------------------------------------------------------------
Stoody Company (a) Delaware
(b) Kentucky
Missouri
--------------------------------------------------------------------------------
Xxxxxx Gas Systems, Inc. (a) Delaware
(b) Indiana
Pennsylvania
--------------------------------------------------------------------------------
Thermal Arc, Inc. (a) Delaware
(b) Ohio
--------------------------------------------------------------------------------
C&G Systems, Inc. (a) Illinois
(b) N/A
--------------------------------------------------------------------------------
122
SCHEDULE 4.0l(xv)
TO
RECEIVABLES PARTICIPATION AGREEMENT BETWEEN
THERMADYNE RECEIVABLES, INC., AS TRANSFEROR, AND BANKERS
TRUST COMPANY, AS TRUSTEE
1. Tweco Products, Inc.
License Agreement with XX Xxxxxxx
2. Thermal Dynamics Corporation
License Agreement with XX Xxxxxxx
3. Thermadyne International Corp.
License Agreement with XX Xxxxxxx
4. Stoody Company
License Agreement with XX Xxxxxxx
5. Xxxxxx Gas Systems, Inc.
Madic-Computfact Corporation Software (now owned by company)
6. Xxxxxx Equipment Company
Madic-Computfact Corporation Software (now owned by company)
7. Thermal Arc, Inc.
License Agreement with XX Xxxxxxx
8. C&G Systems, Inc.
License Agreement with XX Xxxxxxx
123
EXHIBIT 5.01(p)
TO
RECEIVABLES PARTICIPATION AGREEMENT BETWEEN
THERMADYNE RECEIVABLES, INC., AS TRANSFEROR, AND BANKERS
TRUST COMPANY, AS TRUSTEE
NAMES AND ADDRESSES OF LOCKBOX BANKS
Contact Address: Wire Instructions Address:
Bank of America, N.A. Bank of America, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx 0000 Xxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx ABA Routing # 000000000
(000) 000-0000
ACCOUNTS:
Thermadyne Receivables Securitization Concentration:
Thermadyne Industries, Inc. Account 3750942376
Lockboxes:
Thermal Dynamics
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Thermadyne International
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Xxxxxx Equipment Company
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Tweco Products
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Stoody Company
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Exhibit 5.01(p)--Page 1 of 2
124
Thermadyne Consolidated
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Xxxxxx Gas Systems
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Thermal Arc, Inc.
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
C&G Systems
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Zero Balance Accounts:
Xxxxxx Equipment Account 3750942327
Thermadyne International Account 3750972207
Exhibit 5.01(p)--Page 2 of 2
125
EXHIBIT 6.01(c)
For purposes of this Exhibit, "Specified Plants" shall mean (i) with
respect to the first report delivered pursuant to Section 6.01(c) of the RPA,
all domestic plants of Xxxxxx and the Sellers and (ii) with respect to each
subsequent report delivered pursuant to such Section, all plants of Xxxxxx and
the Sellers selected for a field visit in connection with the annual audit
described in Section 6.01(a) of the RPA.
Part A. Agreed upon Procedures relating to Settlement Statement
Haphazardly select two Settlement Statements and perform the following
procedures on each Settlement Statement:
I. Agree the following Settlement Statement items to the company's applicable
source document and recalculate their mathematical accuracy on a test
basis:
Monthly Receivable Activity
Loss Reserve Ratio
Dilution Reserve Ratio
Discount Rate Reserve
Loss Discount
Discount Rate
Aged Receivables Ratio
Part B. Agreed Upon Procedures relating to the Daily Reports
Haphazardly select four Daily Reports and perform the following procedures on
the reports prepared by the Specified Plants for inclusion in such Daily
Reports:
I. Agree the following report items to the Specified Plant's applicable source
document and recalculate their mathematical accuracy: (Letters refer to the
Sections of such report)
A. Daily Receivable Activity
B. Net Eligible Receivables Calculation (if not closing period)
C. Excess Concentration Balances
D. Other Excess Balances
126
Part C. Agreed Upon Procedures relating to Credit Documentation
Haphazardly select one fiscal month end during the fiscal year and perform the
following procedures:
I. Obtain a list of Eligible Obligors from each Specified Plant with accounts
receivables balances exceeding $250,000 and haphazardly select five
customers.
II. Direct the Specified Plant to prepare a Credit File Contents Schedule (the
"Credit Schedule") that summaries the contents of the credit files in
regard to the customers selected. The Credit Schedule will include the
following information as of the cut-off date selected: Customer name,
Customer account number, Customer statement, approved credit limit, date of
credit limit approval, name and title of highest authority that approved
the credit limit, and other supporting documentation in support of
extension of the credit limit (i.e. Dun & Bradstreet report, Customer
Financial Statement, bank or trade references and other memorandum).
III. For Each Customer selected:
A. Agree the customer's account balance to the balance per the source
documents.
B. Compare the customer's accounts receivable balance to the approved credit
limit and find the balance to be less than or equal to the approved limit.
C. Compare the date of the customer's most recent invoice indicated on the
customer's statement to the date of the credit approval and find that the
date of the invoice is the date of or subsequent to, but within one year of
the date of credit approval.
D. Note that at least one of the following items is included with the credit
documentation:
Xxxx & Bradstreet Credit Report or other Credit Report
Bank or trade reference
financial statements
Memorandum or workpapers regarding credit
evaluation/justification
D. Agreed upon Procedures Relating to certain corporate office operations and
information to be obtained from the Specified Plants.
For each date the Daily Report is requested for purposes of Part B perform
the following:
-2-
127
I. Agreed Upon Procedures relating to Invoices
A. Obtain the Detailed Aging Report and haphazardly select 4 invoices. Agree
the invoice date, amount and customer name of each selected invoice to the
file copy of the invoice.
II. Agreed Upon Procedures relating to Dilutions and Credits
A. Obtain the detailed aging report and haphazardly select 4 credit memos.
Agree the date, amount and customer name of each selected credit memo to
the file copy of the credit memo.
III. Agreed Upon Procedures relating to Cash Applications
A. Haphazardly select 4 individual cash receipts comprising the cash
collection amount and agree the bank receipt date to the receipt date and
application amount on the appropriate Daily Report.
IV. Agreed Upon Procedures relating to Ineligible Receivables
A. Obtain the summary aging report and haphazardly select 4 customers that
have balances over 90 days past due. For the selected accounts, calculate
the customer balances over 90 days past due as a percentage of the
customer's total balance. If this calculated percentage is more than 50%,
note that the customer is classified as ineligible.
V. Agreed Upon Procedures relating to Aging Reports
A. Using the 4 invoices selected in I.A. of this Part D, find that the invoice
is in the appropriate aging category on the detail aging report.
VI. Agreed Upon Procedures relating to Purchase Orders
A. Using the 4 invoices selected in I.A. of this Part D, agree the purchaser
order reference number on the Invoice to the purchase order (if available).
VII. Agreed Upon Procedures relating to Write-Offs
A. For each Specified Plant, haphazardly select 4 write-offs (or, if less, all
write-offs) of more than $1,000 individually. Obtain the write-off
documentation and note that the write-offs have been approved and that the
invoices representing the write-offs do not appear on the detailed aging
report
-3-
128
EXHIBIT 6.01(d)
TO
RECEIVABLES PARTICIPATION AGREEMENT
BETWEEN THERMADYNE RECEIVABLES, INC., AS TRANSFEROR, AND
BANKERS TRUST COMPANY, AS TRUSTEE
FORM OF AUTHORIZED OFFICER'S CERTIFICATE
The undersigned, ________________, hereby certifies as of________________,
_____ that [s]he is the duly elected and acting [describe officer's title] of
Thermadyne Receivables, Inc., a Delaware corporation ("TRI"), and that attached
hereto as Exhibit A is a true, correct and complete copy of the unaudited annual
statement of operations and the related balance sheet (the "Financial
Statements") as described in Section 6.01(a) of the Receivables Participation
Agreement dated as of January 31, 2000 (the "Agreement") between TRI, as
transferor, and Bankers Trust Company, as trustee, as the same may be
supplemented, amended or otherwise modified from time to time. Capitalized terms
used and not otherwise defined herein shall have the meaning ascribed to them in
the Agreement.
The Financial Statements fairly present the financial position and results
of operations of TRI in accordance with GAAP consistently applied (except for
such changes in application which are approved by the undersigned and disclosed
therein) [and to the best of the undersigned's knowledge, no Liquidation Event
or Unmatured Liquidation Event has occurred during the period represented in
the Financial Statements.]*
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
date first written above.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
* Use bracketed text if applicable. Otherwise, if a Liquidation Event or
Unmatured Liquidation Event has occurred, describe it and the steps, if
any, taken or being taken to cure it.
129
EXHIBIT 6.08
TO
RECEIVABLES PARTICIPATION AGREEMENT BETWEEN
THERMADYNE RECEIVABLES, INC., AS TRANSFEROR, AND BANKERS
TRUST COMPANY, AS TRUSTEE
LOCATION OF RECORDS
Thermadyne Mfg. LLC Thermadyne International Corp.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000 0000 Xxxxxxxx Xxxx
Xx. Xxxxx, XX 00000 Xxxxxxxx, Xxxxxxx X0X 0X0
(000) 000-0000 (000) 000-0000
Thermadyne Receivables, Inc. Xxxxxx Equipment Company
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000 0000 Xxxxxxx Xxxx
Xx. Xxxxx, XX 00000 Xxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Xxxxxx Gas Systems, Inc. Tweco Products, Inc.
0000 Xxxxx 00xx Xxxxxx 0000 Xxxx Xxxxx
Xxxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
(000)000-0000 (000) 000-0000
Thermal Arc, Inc. C&G Systems, Inc.
0000 Xxxxxxxxx Xxxxx 0000 Xxxxxxxx
Xxxx, Xxxx 00000 Xxxxxx,XX 00000
(000) 000-0000 (000) 000-0000
Thermal Dynamics Corporation Stoody Company
Industrial Park #2 0000 Xxxxxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000 Xxxxxxx Xxxxx, XX 00000
(000) 000-0000 (000) 000-0000
130
Exhibit 8.01
Form of Lockbox
Agreement
Form of Three Party Agreement Relating to Lockbox Services
This Agreement is entered into as of January 31, 2000, among Thermadyne
Receivables, Inc. ("Company"), Banker's Trust Company, as trustee ("Trustee")
for the holders of the Certificates ("Investors") issued by Company pursuant to
the Receivables Participation Agreement (as described below) and the Bank of
America, N.A. ("Bank").
A. Certain subsidiaries of Thermadyne (each, a "Seller") and Xxxxxx
Equipment Company ("Xxxxxx") entered into a Receivables Purchase and Sale
Agreement, dated as of January 31, 2000 (the "First Tier RSPA") providing for
the sale of certain Receivables) as defined therein) by each Seller to Xxxxxx.
Simultaneously therewith, Xxxxxx and Company entered into a Receivables Purchase
and Sale Agreement, dated as of January 31, 2000, (the "Second Tier RSPA",
together with the First Tier RSPA, the "RSPAs") providing for the sale of such
Receivables by Xxxxxx to Company. Thermadyne Mfg. LLC joined into the Second
Tier RSPA as guarantor to guarantee certain obligations of each Seller and
Xxxxxx under the RSPAs, including without limitation, the obligations to permit
any collections on the Receivables and payments of certain fees, costs and
expenses.
B. Concurrently with the RSPAs, Company and Trustee entered into a
Receivables Participation Agreement, dated as of January 31, 2000, providing,
among other things, for the transfer of the Receivables and assignment of the
Account (as defined below) by Company to Trustee for the benefit of Investors.
C. Company, Trustee and Bank are entering into this Agreement to provide
for the disposition of net proceeds of the checks and other payment instruments
(collectively, "Checks") deposited in the Company's account #37509 42376
maintained at the Bank (the "Account") pertaining to receipts mailed to the post
office boxes specified on Exhibit B (the "Lockbox Address(es)").
Accordingly, Company, Trustee and Bank agree as follows:
1. Each party hereby agrees and acknowledges that:
(a) from the date hereof, the Account shall at all times remain under the
sole dominion and control of Trustee, and Trustee shall be entitled to exercise
any and all rights in respect of or in connection with the Account, including,
without limitation, the right to specify that payments are to be made out of or
in connection with the Account to different accounts or at different times
(subject to Bank's customary and then-current procedures for lockbox
processing). Company shall not have the right to take any action with respect to
the Account or any moneys or instruments deposited therein unless pursuant to
written express authorization from Trustee.
131
(b) Notwithstanding anything provided above, Trustee's instruction with
respect to the Account may be given through such Servicer (as defined in the
RPSAs) as Trustee may from time to time appoint; provided that Trustee shall
notify Bank thereof in writing. Bank shall follow instructions of such Servicer
as if such instructions were given directly by Trustee (subject to the
limitations imposed by Trustee and communicated to Bank in writing) until
Trustee notifies Bank of the revocation of authority from Servicer. Each of
Trustee and Servicer shall provide to Bank a list of their respective employees
authorized to issue instructions and give notices with respect to the Account
which lists may be revised from time to time. Bank shall be entitled to rely on
(and to assume) the authority of any person whom Bank reasonably believes to be
an employee of Trustee or Servicer identified on such lists, and are hereby
authorized to act on any notice given on behalf of Trustee or Servicer by any
such person, subject to any limitation on the appointment of Servicer and the
revocation of Servicer's authority as provided herein. The initial Servicer
shall be Xxxxxx.
2. Bank is hereby authorized:
(a) to perform the Lockbox Service as defined in Exhibit A and to follow
its usual operating procedures for the handling of any Checks, in accordance
with the Standard Terms and Conditions attached hereto as Exhibit A and
incorporated herein, except as modified by this Agreement;
(b) to charge the Account for all returned Checks, service charges, and
other fees and charges associated with the Lockbox Service and this Agreement;
(c) to follow its usual procedures in the event the Lockbox Address(es),
the Account or any Check should be or become the subject of any writ, levy,
order or other similar judicial or regulatory order or process; provided that,
except as prohibited by law, such procedures shall in all cases provide notice
to Trustee and afford Trustee sufficient time to protect the rights and
interests of Investors;
(d) to maintain a record of all Checks received in the Account and to
provide, at Company's expense, Servicer (acting on behalf of Trustee) and, upon
request, Trustee, with photostatic copies, vouchers, enclosures, etc., of such
checks on a daily basis; and
(e) to transfer, on a daily basis and in immediately available funds, all
collected and available balances in the Account to Trustee's Account No.
00000000 at Bankers Trust Company, ABA #021001 033, Account of Corporate Trust &
Agency Group, Attn: Xxxxx X. Xxxxxx; or such other account as may be designated
by Trustee in writing pursuant to Trustee's instructions. Funds are not
available if, in the reasonable determination of Bank, they are subject to a
hold, dispute or legal process preventing their withdrawal. Trustee will give
Bank sufficient advance written notice of any change in the instructions for
Bank to act upon such changes.
2
132
3. (a) If the balances in the Account are not sufficient to pay Bank for any
returned Check, Company agrees to pay Bank on demand the amount due Bank in
respect of such Returned Checks.
(b) If the balances in the Account are not sufficient to compensate Bank
for any fees or charges due Bank in connection with the Lockbox Service or this
Agreement, Company agrees to pay Bank on demand the amount due Bank. Company
will have breached this Agreement if it has not paid Bank, within 30 days after
the demand, the amount due Bank.
(c) Company hereby authorizes Bank, without prior notice, from time to time
to debit any other account Company may have with Bank for the amount or amounts
due Bank under subsection 3(a) or 3(b). However, Bank shall under no
circumstances debit the Account for any amount or amounts due Bank with respect
to such other accounts or for any purposes other than those expressly permitted
herein.
(d) Bank agrees it shall not offset against the Account, except as
permitted under this Agreement, until it has been advised in writing by Trustee
that all of Company's obligations which are secured by the Checks and the
Account are paid in full. Trustee shall notify Bank promptly in writing upon
payment in full of Company's obligations and this Agreement shall automatically
terminate upon receipt of such notice.
4. Termination of this Agreement shall be as follows:
(a) Bank may terminate this Agreement upon 30 days' prior written notice to
Company and Trustee. Trustee may terminate this Agreement upon 30 days' prior
written notice to Company and Bank; provided, however, that in the case of a
Servicer Termination Event (as defined in the Second Tier RPSA), Trustee shall
have the right to terminate this Agreement immediately upon written notice to
Bank and Company. Company may not terminate this Agreement or the Lockbox
Service except with the written consent of Trustee and upon 30 days' prior
written notice to Bank and Trustee.
(b) notwithstanding subsection 4(a), Bank may terminate this Agreement at
any time on at least five days prior written notice to Company and Trustee if
either Company or Trustee breaches the terms of this agreement in any material
aspects.
(c) Notwithstanding subsection 4(a) Bank may also terminate this Agreement
at any time on at least five days prior written notice to Trustee if Company (i)
breaches any other agreement with Bank or any agreement involving the borrowing
of money or extension of credit; (ii) liquidates, dissolves, merges with or into
or consolidates with another entity or sells, leases or disposes of a
substantial portion of its business or assets; (iii) terminates its business,
fails generally or admits in writing its inability to pay its debts as they
become due; any bankruptcy, reorganization, arrangement, insolvency, dissolution
or similar proceeding is instituted with respect to Company; Company makes any
assignment for the benefit of creditors or enters into any composition with
creditors or takes any action in furtherance of any of the foregoing; or (iv)
3
133
any material adverse change occurs in either Company's financial condition,
results of operations or ability to perform its obligations under this
Agreement. Company shall promptly give written notice to Bank of the occurrence
of any of the foregoing events as it applies to it.
(d) Notwithstanding any party's right to terminate this Agreement contained
herein, this Agreement shall automatically terminate on May 30, 2000.
(e) Unless Trustee has notified Bank in writing that all of Company's
obligations which are secured by the Checks and the Account are paid in full,
upon and after termination of this Agreement, Bank will (i) immediately transfer
any collected and available funds remaining in the Account pursuant to Trustee's
instructions and the Account will be closed; and (ii) within two business days
of receipt thereof, forward any mail received at the Lockbox Address for 90 days
after termination of this Agreement to the address specified on the signature
page for Trustee or to another address designated in writing by Trustee;
provided that sending of mail as described above is Bank's only responsibility
with respect to the mail received at the Lockbox Address within 90 days after
termination of this Agreement. Bank shall forward mails at its standard charge
in effect at the time the mail is forwarded and Company shall pay such charges.
5. (a) Bank will not be liable to Company or Trustee for any expense, claim,
loss, damage or cost ("Damages") arising out of or relating to its performance
under this Agreement other than those Damages which result directly from its
acts or omissions constituting negligence or willful misconduct.
(b) In no event will Bank be liable for any special, indirect, exemplary or
consequential damages, including but not limited to lost profits.
(c) Bank will be excused from failing to act or delay in acting, and no
such failure or delay shall constitute a breach of this Agreement or otherwise
give rise to any liability of Bank, if (i) such failure or delay is caused by
circumstances beyond Bank's reasonable control, including but not limited to
legal constraint, emergency conditions, action or inaction of governmental,
civil or military authority, fire, strike, lockout or other labor dispute, war
riot, theft, flood, earthquake or other natural disaster, breakdown of public or
private or common carrier communications or transmission facilities, equipment
failure, or act, negligence or default of Company or Trustee or (ii) such
failure or delay resulted from Bank's reasonable belief that the action would
have violated any guideline, rule or regulation of any governmental authority.
6. Company shall indemnify Bank against, and hold it harmless from, any and all
liabilities, claims, costs, expenses and damages of any nature (including but
not limited to allocated costs of staff counsel, other reasonable attorney's
fees and any fees and expenses incurred in enforcing this Agreement) in any way
arising out of or relating to disputes or legal actions concerning Bank's
provision of the Lockbox Service, this Agreement, any Check or the Lockbox
Addresses. This section does not apply to any cost or damage attributable to the
gross negligence or
4
134
intentional misconduct of Bank. Company's obligations under this section shall
survive termination of this Agreement.
7. (a) Company and Trustee each represent and warrant to Bank that (i) this
Agreement constitutes its duly authorized, legal, valid, binding and enforceable
obligation; (ii) the performance of its obligations under this Agreement and the
consummation of the transactions contemplated hereunder will not (A) constitute
or result in a breach of its certificate or articles of incorporation, by-laws
or partnership agreement, as applicable, or the provisions of any material
contract to which it is a party or by which it is bound or (B) result in the
violation of any law, regulation, judgment, decree or governmental order
applicable to it; and (iii) all approvals and authorizations required to permit
the execution, delivery, performance and consummation of this Agreement and the
transactions contemplated hereunder have been obtained.
(b) Company and Trustee each agree that it shall be deemed to make and
renew each representation and warranty in subsection 7(a) on and as of each day
on which it uses the Lockbox Service.
8. Company represents and warrants that it has not assigned or granted a
security interest in the Account or any funds now or hereafter deposited in the
Account, except to Trustee.
9. Company agrees that:
(a) It cannot, and will not, withdraw any monies from the Account until
such time as Trustee advises Bank in writing that Trustee no long claims any
interest in the Account and the monies deposited and to be deposited in the
Account; and
(b) It will not permit the Account to become subject to any other pledge,
assignment, lien, charge or encumbrance of any kind, nature or description,
other than Trustee's security interest referred to herein.
10. Trustee acknowledges and agrees that Bank has the right to charge the
Account from time to time, as set forth in Section 2(b) of this Agreement, and
that Trustee has no right to the sums so withdrawn by Bank.
11. In order to secure all of the obligations of Company to Bank hereunder,
Company hereby agrees to maintain at all times during the existence of this
Agreement and for 30 days thereafter an interest bearing account with Bank in at
least the amount of $100,000 (the "Security Account"). Amounts in the Security
Account will be invested at the written direction of the Company, and interest
thereon shall be payable monthly to Company. The Security Account shall not be
subject to any security interest in favor of Trustee. Bank shall be permitted to
debit the Security Account from time to time for any items owed it by Company
hereunder; provided that the existence of the Security Account shall in no way
affect any grace or cure periods provided to Company herein and shall not
relieve Bank from first seeking payment from Company directly as provided
herein.
5
135
12. (a) Each business day, Bank will send any Checks not processed in
accordance with the set-up documents as well as any other materials, such as
invoices, received at the Lockbox Address plus information regarding the deposit
for the day to the address specified below for Company, with a copy of the
deposit advice to the address specified below for Servicer.
(b) In addition to the original Bank statement which will be provided to
Company, Bank will provide Servicer with a duplicate statement.
13. Company agrees to pay to Bank, upon receipt of Bank's invoice, all
reasonable costs, expenses and attorneys' fees (including reasonable allocated
costs for in-house legal services) incurred by Bank in connection with the
enforcement of this Agreement and any instrument or agreement required
hereunder, including but not limited to any such costs, expenses and fees
arising out of the resolution of any conflict, dispute, motion regarding
entitlement to rights or rights of action, or other action to enforce Bank's
rights in a case arising under Xxxxx 00, Xxxxxx Xxxxxx Code. Company agrees to
pay Bank, upon receipt of Bank's invoice, all reasonable costs, expenses and
attorneys' fees (including reasonable allocated costs for in-house legal
services) incurred by Bank in the preparation and administration of this
Agreement (including any amendments hereto or instruments or agreements required
hereunder).
14. Notwithstanding any of the other provisions in this Agreement, in the event
of the commencement of a case pursuant to Xxxxx 00, Xxxxxx Xxxxxx Code, filed by
or against Company, or in the event of the commencement of any similar case
under then applicable federal or state law providing for the relief of debtors
or the protection of creditors by or against Company, Bank agrees to do all
things Bank deems necessary to comply with all applicable provisions of
governing statutes and shall be held harmless from any claim of any of the
parties for so doing.
15. This Agreement may be amended only by a writing signed by Company, Trustee
and Bank; except that Bank's charges described in Section 2(b) of this Agreement
are subject to change by Bank upon 30 days' prior written notice to Company.
16. This Agreement may be executed in counterparts; all such counterparts shall
constitute but one and the same agreement.
17. Any written notice or other written communication to be given under this
Agreement shall be addressed to each party and its address set forth on the
signature page of this Agreement or to such other address as a party may specify
in writing. Except as otherwise expressly provided herein, any such notice shall
be effective upon receipt.
18. This Agreement controls in the event of any conflict between this Agreement
and any other document or written or oral statement. This Agreement supersedes
all prior understandings, writings, proposals, representations and
communications, oral or written, of any party relating to the subject matter
hereof.
6
136
19. Neither Company nor Trustee may assign any of its rights under this
Agreement without the prior written consent of Bank.
20. Nothing contained in the Agreement shall create any agency, fiduciary, joint
venture or partnership relationship between Company or Trustee and Bank.
21. This Agreement shall be interpreted in accordance with New York law without
reference to New York principles of conflicts of law.
22. The Servicer's address for notices is:
Xxxxxx Equipment Company
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xx. Xxxxx, XX 00000
Telephone: 000.000.0000
Telefax: 314.746.2307
Attn: Xxxxxxx X. Xxxx
7
137
In Witness Whereof, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year first above written.
Thermadyne Receivables, Inc.
------------------------------
("COMPANY")
By: Address for notices:
-------------------------- 000 Xxxxx Xxxxxx Xxxx
Name: Xx. Xxxxx, XX 00000
------------------------
Title:
-----------------------
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
Banker's Trust Company
------------------------------
("TRUSTEE")
By: Address for notices:
-------------------------- 0 Xxxxxx Xxxxxx, 00xx Xxxxx
Name: Xxx Xxxx, XX 00000
------------------------
Title:
-----------------------
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Structured Finance
Group
Bank of America, N.A.
By: Address for notices:
-------------------------- 000 Xxxx Xxxxxx
Name: 0xx Xxxxx
------------------------ Xxxxxx, XX
Title:
-----------------------
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxx
8
138
EXHIBIT 8.03(b)
TO
RECEIVABLES PARTICIPATION AGREEMENT BETWEEN
THERMADYNE RECEIVABLES, INC., AS TRANSFEROR, AND BANKERS
TRUST COMPANY, AS TRUSTEE
FORM OF CERTIFICATE FOR SERVICER AND COLLECTION AGENT
The undersigned, ______________, hereby certifies as of ___________, _____ that
[s]he is the duly elected and acting [describe officer's title] of [insert name
of Servicer and/or Collection Agent], a _________________ [corporation]
("Servicer [and/or Collection Agent]"). Reference is hereby made to that certain
Receivables Participation Agreement dated as of January 31, 2000 (the
"Agreement") between TRI, as transferor, and Bankers Trust Company, as trustee,
as the same may be supplemented, amended or otherwise modified from time to
time. Capitalized terms used and not otherwise defined herein shall have the
meaning ascribed to them in the Agreement.
This certificate is delivered in connection with the Settlement Statement
dated as of___________, _________. To the best of the undersigned's knowledge,
no Liquidation Event or Servicer Termination Event has occurred and is
continuing.*
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
date first written above.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
* Use bracketed text if applicable. Otherwise, if a Liquidation Event or
Servicer Termination Event has occurred, describe it and the steps, if any,
taken or being taken in respect thereof.
139
Exhibit 10.08 (a) --
Form of Reg S Certificate
FORM OF REG S CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE TRUSTEE (AS DEFINED HEREIN) OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO THE DEPOSITORY TRUST COMPANY,
OR A NOMINEE THEREOF, NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE RECEIVABLES PARTICIPATION AGREEMENT THAT
IS REFERRED TO BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE OF THE UNITED
STATES OF AMERICA. THIS CERTIFICATE IS A REGULATION S TEMPORARY GLOBAL
CERTIFICATE, AS THAT TERM IS DEFINED IN THE RECEIVABLES PARTICIPATION
AGREEMENT THAT IS REFERRED TO BELOW. THE CERTIFICATEHOLDER HEREOF, BY
PURCHASING THIS CERTIFICATE, AGREES THAT INTERESTS IN THIS REGULATION
S TEMPORARY GLOBAL CERTIFICATE MAY NOT BE OFFERED OR SOLD TO A U.S.
PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON PRIOR TO THE
EXCHANGE DATE (AS DEFINED IN
140
THE RECEIVABLES PARTICIPATION AGREEMENT REFERRED TO BELOW) AND NO
TRANSFER OR EXCHANGE OF AN INTEREST IN THIS REGULATION S TEMPORARY
GLOBAL CERTIFICATE MAY BE MADE FOR AN INTEREST IN THE 144A GLOBAL
CERTIFICATE OR IN THE UNRESTRICTED GLOBAL CERTIFICATE UNTIL AFTER THE
LATER OF THE EXCHANGE DATE AND THE DATE ON THE DOCUMENTATION REQUIRED
BY THE RECEIVABLES PARTICIPATION AGREEMENT RELATING TO THE INTEREST
HAVE BEEN PROVIDED IN ACCORDANCE WITH THE TERMS OF THE RECEIVABLES
PARTICIPATION AGREEMENT, TO THE EFFECT THAT THE BENEFICIAL OWNER OR
OWNERS OF SUCH INTEREST ARE NOT U.S. PERSONS. THE CERTIFICATEHOLDER OF
THIS CERTIFICATE AGREES THAT IT WILL, AND EACH SUBSEQUENT
CERTIFICATEHOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
CERTIFICATE OF THE RESALE RESTRICTIONS REFERRED TO ABOVE.
THERMADYNE RECEIVABLES PROGRAM
[FORM OF] CERTIFICATE
CUSIP Number: Initial Stated Amount: $
------------------ -------
THIS CERTIFIES THAT Cede & Co. is the registered owner of a fractional
undivided interest in the Transferred Assets as such term is defined in the
Receivables Participation Agreement, dated as of January 31, 2000, (as the same
may be amended, supplemented, amended and restated or otherwise modified from
time to time, the "RPA"), by and among Thermadyne Receivables, Inc., a Delaware
corporation, as transferor ("TRI") and Bankers Trust Company, as trustee
(together with its successors and assigns in such capacity, the "Trustee").
This Certificate is one of the duly authorized Certificates designated and
issued under the RPA. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in Annex I to
the RPA. This Certificate is subject to the terms, provisions and conditions of,
and is entitled to the benefits afforded by, the RPA. The holder of this
Certificate agrees, by virtue of the acceptance hereof, to be bound by the
terms, provisions and conditions of the RPA and the other Program
141
Documents. Additionally, each Benefit Plan that purchases a Certificate or
interest therein will be deemed to represent and warrant that (i) the
acquisition and holding of the Certificate or any interest therein will not
result in a nonexempt prohibited transaction under ERISA or the Code or (ii) the
Investor or the Certificate Owner (as applicable) is the general account of an
insurance company and the Class Exemption for Certain Transactions Involving
Insurance Company General Accounts, Prohibited Transferor Class Exemption 95-60,
applies to the acquisition and holding of the certificate by the Investor or the
Certificate Owner (as applicable).
Interest shall accrue on this Certificate for each Fixed Period at a rate
per annum equal to the LIBO Rate for such Fixed Period plus 0.65%, as set forth
in the RPA. This Certificate is subject to prepayment prior to the maturity
hereof to the extent set forth in the RPA. The final legal maturity date of the
Certificate is the Settlement Date in February, 2004.
The RPA may be amended and the rights and obligations of the parties
thereto and of the holder of this Certificate modified as set forth in the RPA.
Unless the certificate of authentication hereon shall have been executed by
or on behalf of the Trustee by the manual signature of a duly authorized
signatory, this Certificate shall not entitle the holder hereof to any benefit
under the RPA or under any other Program Document or be valid for any purpose.
This Certificate does not represent an obligation of, or an interest in,
TRI, any Seller, the Servicer, Thermadyne, Xxxxxx, the Trustee or any Affiliate
of any of them. This Certificate is limited in right of payment to the
Transferred Assets.
As provided in the RPA, and subject to the restrictions on sale, transfer
and disposition set forth therein and in the other Program Documents, upon
surrender for registration of transfer of this Certificate at any office or
agency of the Transfer Agent and Registrar maintained for such purpose, TRI
shall execute and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
class and series which are in authorized
142
denominations of like aggregate principal amount, and which bears a number that
is not contemporaneously outstanding.
As provided in the RPA, and subject to the restrictions on exchange set
forth therein and in the other Program Documents, at the option of the holder,
this Certificate may be exchanged for other Certificates of authorized
denominations of like aggregate principal amount and bearing numbers that are
not contemporaneously outstanding, upon surrender of this Certificate to be
exchanged at any such office or agency. If this Certificate is so surrendered
for exchange, TRI shall execute, and the Trustee shall authenticate and deliver,
the appropriate number of Certificates.
If this Certificate is presented or surrendered for registration of
transfer or exchange, it shall be accompanied by a written instrument of
transfer in a form satisfactory to the Trustee and the Transfer Agent and
Registrar duly executed by the holder hereof or his attorney-in-fact duly
authorized in a writing delivered to the Transfer Agent and Registrar.
By its acceptance of this Certificate, each holder hereof (a) acknowledges
that it is the intent of TRI, and agrees that it is the intent of such holder
that, for federal, state and local income and franchise tax purposes, the
Certificates will be treated as evidence of indebtedness secured by the
Transferred Assets, (b) agrees to treat this Certificate for federal, state and
local income and franchise tax purposes as indebtedness, and (c) agrees that the
provisions of the RPA and all related Program Documents shall be construed to
further these intentions of the parties.
This Certificate shall be construed in accordance with the laws of the
State of New York, without reference to its conflict of laws principles, and all
obligations, rights and remedies under, or arising in connection with, this
Certificate shall be determined in accordance with the laws of the State of New
York.
143
IN WITNESS WHEREOF, TRI has caused this Certificate to be executed by its
officer thereunto duly authorized as of [DATE].
THERMADYNE RECEIVABLES, INC.
By:
-------------------------------
Name:
Title:
144
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
As of the date first above written, this is one of the Certificates
referred to in the Receivables Participation Agreement.
BANKERS TRUST COMPANY, as Trustee
By:
-------------------------------
Name:
Title:
145
Exhibit 10.08(a)--
Form of Reg 144 Certificate
FORM OF REG 144 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE TRUSTEE (AS DEFINED HEREIN) OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST
COMPANY, OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO THE DEPOSITORY TRUST COMPANY,
OR A NOMINEE THEREOF, NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE RECEIVABLES PARTICIPATION AGREEMENT THAT
IS REFERRED TO BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
TENDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE OF THE UNITED
STATES OF AMERICA. THE CERTIFICATEHOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) TO TRI, (2) IN
THE UNITED STATES TO A LIMITED NUMBER OF INSTITUTIONAL "ACCREDITED
INVESTORS" (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) AND IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (UPON DELIVERY OF THE DOCUMENTATION
REQUIRED BY THE RECEIVABLES PURCHASE AGREEMENT REFERRED
146
TO BELOW AND, IF THE TRUSTEE SO REQUIRES, AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE), (3) IN THE UNITED STATES PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE
CERTIFICATEHOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYERS WITHIN THE MEANING OF RULE 144A (A "QUALIFIED INSTITUTIONAL
BUYER"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, AND WHOM THE CERTIFICATEHOLDER HAS
INFORMED, IN EACH CASE, THAT THE OFFER, RESALE, PLEDGE, OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (4) IN THE UNITED
STATES IN COMPLIANCE WITH RULE 144 UNDER THE SECURITIES ACT IF
AVAILABLE AND UPON DELIVERY OF AN OPINION OF COUNSEL IN A FORM
SATISFACTORY TO THE TRUSTEE OR (5) OUTSIDE THE UNITED STATES IN A
TRANSACTION COMPLYING WITH THE PROVISIONS OF REGULATION S UNDER THE
SECURITIES ACT, AND IN EACH CASE, ANY DOCUMENTATION REQUIRED BY THE
RPA AND IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE UNITED STATES OF AMERICA OR OTHER APPLICABLE JURISDICTION AND
SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES OF
AMERICA. THE CERTIFICATEHOLDER OF THIS CERTIFICATE AGREES THAT IT
WILL, AND EACH SUBSEQUENT CERTIFICATEHOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS CERTIFICATE OF THE RESALE RESTRICTIONS REFERRED TO
ABOVE.
THERMADYNE RECEIVABLES PROGRAM
[FORM OF] CERTIFICATE
CUSIP Number: Initial Stated Amount: $
------------------ -------
THIS CERTIFIES THAT Cede & Co. is the registered owner of a fractional
undivided interest in the Transferred Assets as such term is defined in the
Receivables Participation Agreement, dated as of January 31, 2000 (as the same
may be amended, supplemented, amended and restated or otherwise modified from
time to time, the "RPA"), by and between Thermadyne Receivables, Inc., a
Delaware corporation, as transferor ("TRI") and Bankers Trust Company, as
trustee (together with its successors and assigns in such capacity, the
"Trustee"). This Certificate is one of the duly
147
authorized Certificates designated and issued under the RPA. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in Annex I to the RPA. This Certificate is subject to the
terms, provisions and conditions of, and is entitled to the benefits afforded
by, the RPA. The holder of this Certificate agrees, by virtue of the acceptance
hereof, to be bound by the terms, provisions and conditions of the RPA and the
other Program Documents. Additionally, each Benefit Plan that purchases a
Certificate or interest therein will be deemed to represent and warrant that (i)
the acquisition and holding of the Certificate or any interest therein will not
result in a nonexempt prohibited transaction under ERISA or the Code or (ii) the
Investor or the Certificate Owner (as applicable) is the general account of an
insurance company and the Class Exemption for Certain Transactions Involving
Insurance Company General Accounts, the Prohibited Transaction Class Exemption
95-60, applies to the acquisition and holding of the certificate by the Investor
or the Certificate Owner (as applicable).
Interest shall accrue on this Certificate for each Fixed Period at a rate
per annum equal to the LIBO Rate for such Fixed Period plus 0.65%, as set forth
in the RPA. This Certificate is subject to prepayment prior to the maturity
hereof to the extent set forth in the RPA. The final legal maturity date of the
Certificate is the Settlement Date in February, 2004.
The RPA may be amended and the rights and obligations of the parties
thereto and of the holder of this Certificate modified as set forth in the RPA.
Unless the certificate of authentication hereon shall have been executed by
or on behalf of the Trustee by the manual signature of a duly authorized
signatory, this Certificate shall not entitle the holder hereof to any benefit
under the RPA or under any other Program Document or be valid for any purpose.
This Certificate does not represent an obligation of, or an interest in,
TRI, any Seller, the Servicer, Thermadyne, Xxxxxx, the Trustee or any Affiliate
of any of them. This Certificate is limited in right of payment to the
Transferred Assets.
148
As provided in the RPA, and subject to the restrictions on sale, transfer
and disposition set forth therein and in the other Program Documents, upon
surrender for registration of transfer of this Certificate at any office or
agency of the Transfer Agent and Registrar maintained for such purpose, TRI
shall execute and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
class and series which are in authorized denominations of like aggregate
principal amount, and which bears a number that is not contemporaneously
outstanding.
As provided in the RPA, and subject to the restrictions on exchange set
forth therein and in the other Program Documents, at the option of the holder,
this Certificate may be exchanged for other Certificates of authorized
denominations of like aggregate principal amount and bearing numbers that are
not contemporaneously outstanding, upon surrender of this Certificate to be
exchanged at any such office or agency. If this Certificate is so surrendered
for exchange, TRI shall execute, and the Trustee shall authenticate and deliver,
the appropriate number of Certificates.
If this Certificate is presented or surrendered for registration of
transfer or exchange, it shall be accompanied by a written instrument of
transfer in a form satisfactory to the Trustee and the Transfer Agent and
Registrar duly executed by the holder hereof or his attorney-in-fact duly
authorized in a writing delivered to the Transfer Agent and Registrar.
By its acceptance of this Certificate, each holder hereof (a) acknowledges
that it is the intent of TRI, and agrees that it is the intent of such holder
that, for federal, state and local income and franchise tax purposes, the
Certificates will be treated as evidence of indebtedness secured by the
Transferred Assets, (b) agrees to treat this Certificate for federal, state and
local income and franchise tax purposes as indebtedness, and (c) agrees that the
provisions of the RPA and all related Program Documents shall be construed to
further these intentions of the parties.
This Certificate shall be construed in accordance with the laws of the
State of New York, without reference to its conflict
149
of laws principles, and all obligations, rights and remedies under, or arising
in connection with, this Certificate shall be determined in accordance with the
laws of the State of New York.
150
IN WITNESS WHEREOF, TRI has caused this Certificate to be executed by its
officer thereunto duly authorized.
THERMADYNE RECEIVABLES, INC.
By:
------------------------------
Name:
Title:
151
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the Receivables
Participation Agreement.
BANKERS TRUST COMPANY, as Trustee
By:
------------------------------
Name:
Title:
152
EXHIBIT 10.09(b)(i)(B)
FORM OF ACCREDITED INVESTOR LETTER
, 2000
-----------
ABN AMRO Incorporated
as Placement Agent in connection
with the Offering Memorandum
referred to below
Re: Trade Receivables Back Certificates issued pursuant to the
Receivables Participation Agreement, dated as of ___________,
2000, among Thermadyne Receivables, Inc., as Transferor, and
Bankers Trust Company, as Trustee (the "Certificates")
Ladies and Gentlemen:
In connection with our proposed purchase of Trade Receivables Backed
Certificates of Thermadyne Receivables, Inc. (the "Certificates"), we confirm
that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated January __, 2000, relating to the Certificates and such
other information as we deem necessary in order to make our investment decision.
We acknowledge that we have read and agreed to the matters stated on pages (i)
to (v) and pages ______ to ______ of such Offering Memorandum, including the
restrictions on duplication and circulation of such Offering Memorandum.
2. We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Receivables
Participation Agreement relating to the Certificates and the undersigned agrees
to be bound by, and not to resell, pledge or otherwise transfer the
Certificates.
3. We understand that the offer and sale of the Certificates has not been
registered under the Securities Act of 1933, as amended (the "Securities Act")
and that the Certificates may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons (as defined in Rule 901 of
the Securities Act) except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any the Certificates, we will do so
only (A) to
153
Thermadyne Receivables, Inc. ("TRI"), (B) inside the United States in accordance
with Rule 144A under the Securities Act to a qualified institutional buyer" (as
defined therein), (C) inside the United States to an institution which is an
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to the Trustee (as
defined in the Receivables Participation Agreement relating to the Certificates)
a signed letter containing certain representations and agreements relating to
the restrictions on transfer of the Certificates (the form of which letter can
be obtained from the Trustee), (D) outside the United States in accordance with
Rule 904 of Regulation S under the Securities Act, (E) pursuant to the exemption
from registration provided by Rule 144 under the Securities Act (if available),
or (F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing any of the
Certificates from us a notice advising such purchaser that resales of the
Certificates are restricted as stated herein.
4. We understand that, on any proposed resale of any the Certificates, we
will be required to furnish to the Trustee and TRI such certifications, legal
opinions and other information as the Trustee or TRI may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Certificates purchased by us will bear a legend to
the foregoing effect.
5. We are an institution which is an "accredited investor" (as defined in
Rule 501 (a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investment, as the case may be.
6. We are acquiring the Certificates purchased by us for our account or for
one or more accounts (each of which is an institution which is an "accredited
investor") as to each of which we exercise sole investment discretion.
You, TRI (including its counsel) and the Trustee are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
By:
----------------------------
Name:
-------------------------
Title:
------------------------
2
154
EXHIBIT 10.09(b)(i)(C)
FORM OF TRANSFEROR LETTER
Bankers Trust Company,
as Trustee
0 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Thermadyne Receivables, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Re: Qualified Institutional Buyer Status
Ladies and Gentlemen:
Reference is hereby made to the Receivables Participation Agreement, dated
as of _______, 2000 (the "RPA"), among Thermadyne Receivables Corporation, as
Seller, and Bankers Trust Company, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given them in the RPA.
In connection with our Sale of the Certificates described in Annex I hereto
pursuant to Section 10.09 of the RPA, the undersigned hereby certifies that it
reasonably believes that the transferee of the Certificates described in Annex
II hereto is a "qualified institutional buyer" within the meaning of Rule 144A
that is purchasing for its own account or for the account of another person that
is a "qualified institutional buyer". The undersigned has received a Transferee
Letter of Representation from the transferee in the form of Annex II hereto.
[Insert Name of Transferor]
By:
----------------------------
155
ANNEX I to
EXHIBIT 10.09(b)(i)(C)
Description of Certificates
156
ANNEX II to
EXHIBIT 10.09(b)(i)(C)
CERTIFICATE OF QUALIFIED INSTITUTIONAL BUYER
---------------, ---------------
[Insert Name and Address of Transferor]
Attention:
---------------
The undersigned, being the chief executive officer, the chief financial
officer or a Vice President of _________ (the "Buyer"), hereby certifies as
follows:
(a) At the date of this certificate, the Buyer is a Qualified
Institutional Buyer, as such term is defined in Rule 144A under the
Securities Act of 1933, as amended, and in particular, the Buyer comes
within the category or categories described by the Paragraph(s) of
Rule 144A(a)(1) indicated below:
- (i)(A) (insurance companies)
- (i)(B) (investment companies and business development companies)
- (i)(C) (Small Business Investment Companies)
- (i)(D) (state employee benefit plans)
- (i)(E) (employee benefit plans under ERISA)
- (i)(F) (employee benefit Trust Funds)
- (i)(G) (business development companies)
- (i)(H) (corporations, partnerships and trusts)
- (i)(I) (investment advisers)
- (ii) (registered dealers)
- (iii) (dealers acting in riskless principal transactions)
- (v) (entities owned by QIB's)
- (vi) (banks, S&L's and equivalent institutions)
(b) As of __________, ____), the amount of securities owned and
invested on a discretionary basis by the Buyer (other than bank
deposit notes and certificates of deposit; loan participations;
repurchase agreement; currency, interest rate and commodity swaps;
securities of issuers that are affiliated with the Buyer; and, in the
case of a dealer relying on Section (a)(1)(ii) of Rule 144A,
securities constituting the whole or a part of an unsold allotment to
or subscription by such dealer as a participant
157
in a public offering), calculated in accordance with Rule 144A, was
U.S. $__________.
(c) If the Buyer is a bank or savings and loan association or a
foreign bank, savings and loan association or equivalent institution
relying on Section (a)(1)(vi) of Rule 144A; the audited net worth of
the Buyer as demonstrated in its latest annual financial statements,
dated _______, _____, was $_______.
(d) The Buyer's most recent fiscal year ended on _________, _____
and its current fiscal year will end on ___________, _____.
(e) The Buyer either (i) is acting for its own account or (ii)
has attached hereto copies of certificates from each third party for
the account of which it is acting, in the form of this certificate,
demonstrating that such third parties are QIB's. If the Buyer is
relying on Rule 144A(a)(1)(v), the Buyer has attached hereto copies
of certificates from each of the equity owners of the Buyer, in the
form of this certificate, demonstrating that such equity owners are
QIB's.
IN WITNESS WHEREOF, I have set forth my signature below, as of the
date first above written.
Very truly yours,
By:
-----------------------------
Title:
--------------------------
-2-
158
EXHIBIT 10.09(i)(1)
OWNER REG S CERTIFICATION
FORM OF CERTIFICATE TO BE GIVEN BY CERTIFICATE OWNERS
Euroclear
000 Xxxxxxxxx Xxxxxxxx
X-0000 Xxxxxxxx, Xxxxxxx
CEDEL, societe anonyme
00 Xxxxxxxxx Xxxxx-Xxxxxxxx Xxxxxxxxx
X-0000 Xxxxxxxxxx
Re: Trade Receivables Back Certificates issued pursuant to the Receivables
Participation Agreement, dated as of ___________, 2000, among
Thermadyne Receivables, Inc., as Transferor, and Bankers Trust
Company, as Trustee (the "Certificates")
This is to certify that as of the date hereof, and except as set forth
below, the beneficial interests in the Certificates held by you for our account
are owned by persons that are not U.S. persons (as defined in Rule 901 under the
Securities Act of 1933, as amended).
The undersigned undertakes to advise you promptly by tested telex or
confirmed facsimile on or prior to the date on which you intend to submit your
certification relating to the Certificates held by you in which the undersigned
has acquired, or intends to acquire, a beneficial interest in accordance with
your operating procedures if any applicable statement herein is not correct on
such date. In the absence of any such notification it may be assumed that this
certification applies as of such date.
[This certificate excepts and does not relate to U.S. $________ principal
amount of beneficial interests in the Certificates appearing in your books as
being held for our account but which we have sold or as to which we are not yet
able to certify.]
We understand that this certification is required in connection with
certain securities laws in the United States. If administrative or legal
proceedings are commenced or threatened
159
in connection with which this certification is or would be relevant, we
irrevocably authorize you to produce this certification or a copy thereof to any
interested party in such proceedings.
Dated: (1)
------------------ ---------------------------------
Account Holder
------------
(1) Certification must be dated on or after the 15th day before the date of the
Euroclear or CEDEL certificate to which this certification relates.
2
160
EXHIBIT 10.09(i)(2)
TRANSFEREE REG S CERTIFICATION
FORM OF CERTIFICATE TO BE GIVEN BY TRANSFEREE
OF BENEFICIAL INTEREST IN A REGULATION S
TEMPORARY BOOK-ENTRY CERTIFICATE
Euroclear
000 Xxxxxxxxx Xxxxxxxx
X-0000 Xxxxxxxx, Xxxxxxx
CEDEL, societe anonyme
00 Xxxxxxxxx Xxxxx-Xxxxxxxx Xxxxxxxxx
X-0000 Xxxxxxxxxx
Re: Trade Receivables Back Certificates issued pursuant to the Receivables
Participation Agreement, dated as of _________, 2000, among Thermadyne
Receivables, Inc., as Transferor, and Bankers Trust Company, as
Trustee (the "Certificates")
This is to certify that as of the date hereof, and except as set forth
below, for purposes of acquiring a beneficial interest in the Certificates, the
undersigned certifies that it is not a U.S. person (as defined in Rule 901 under
the Securities Act of 1933, as amended).
The undersigned undertakes to advise you promptly by tested telex or
confirmed facsimile on or prior to the date on which you intend to submit your
certification relating to the Certificates held by you in which the undersigned
intends to acquire a beneficial interest in accordance with your operating
procedures if any applicable statement herein is not correct on such date. In
the absence of any such notification it may be assumed that this certification
applies as of such date.
We understand that this certification is required in connection with
certain securities laws in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings.
Dated: By:
------------------------ --------------------------
Name:
-------------------------
Title:
------------------------
161
EXHIBIT 10.09(i)(3)
DEPOSITARY REG S CERTIFICATION
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR OR CEDEL
Bankers Trust Company
000 Xxxxxxx Xxxxxx
00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
[Transfer Agent other than Trustee]
Re: Trade Receivables Backed Certificates (the "Certificates") issued
pursuant to the Receivables Participation Agreement, dated as of
__________, 2000 (the "RPA"), among Thermadyne Receivables, Inc., as
Transferor, and Bankers Trust Company, as Trustee
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organizations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organizations") as of the date hereof, $____
principal amount of the Certificates is owned by persons (i) that are not U.S.
persons (as defined in Rule 901 under the Securities Act of 1933, as amended
(the "Securities Act")) or (ii) who purchased their Certificates (or interests
therein) in a transaction or transactions that did not require registration
under the Securities Act.
We further certify (i) that we are not making available herewith for
exchange any portion of the related Regulation S Temporary Global Certificate
(as defined in the RPA) excepted in such certifications and (ii) that as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange are no longer true and cannot be relied upon as the date hereof.
We understand that this certification is required in connection with
certain securities laws of the United States. If administrative or legal
proceedings are commenced or threatened
162
in connection with which this certification is or would be relevant, we
irrevocably authorize you to produce this certification or a copy thereof to any
interested party in such proceedings.
Dated: (1)
---------------------- --------
Yours faithfully,
By:
--------------------------------
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE, as
Operator of the Euroclear Clearance
System] [CEDEL, societe anonyme]
--------------
(1) To be dated no earlier than the Exchange Date.
-2-
163
EXHIBIT 10.09(i)(4)
TRANSFER TO REGULATION S CERTIFICATION
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM 144A
CERTIFICATE TO REGULATION S GLOBAL CERTIFICATE
Bankers Trust Company
000 Xxxxxxx Xxxxxx
00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Trade Receivables Backed Certificates (the "Certificates") issued
pursuant to the Receivables Participation Agreement (the "Agreement"),
dated as of ___________, 2000, among Thermadyne Receivables, Inc., as
Transferor, and Bankers Trust Company, as Trustee
Reference is hereby made to the Agreement. Capitalized terms used but not
defined herein shall have the meanings given to them in the Agreement.
This letter relates to U.S.$_________ principal amount of the Certificates
which are held as a beneficial interest in the 144A Global Certificate (CUSIP
No. ___________) with DTC in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested an exchange or transfer of such
beneficial interest for an interest in a Regulation S Book-Entry Certificate
(CUSIP No. ___________) to be held with [Euroclear] [CEDEL] through DTC.
In connection with such request and in respect of such Certificates, the
Transferor does hereby certify that such exchange or transfer has been effected
in accordance with the transfer restrictions set forth in the Agreement and the
Certificates and
(A) pursuant to and in accordance with Regulation S under the Securities
Act, and accordingly the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor
164
and any person acting on its behalf reasonably believed that the transferee
was outside the United States,]*
[(2) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was pre-arranged
with a buyer in the United States,]*
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable,
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(B) with respect to transfers made in reliance on Rule 144 under the
Securities Act, certify that the Securities are being transferred in a
transaction permitted by Rule 144 under the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the issuer and the Placement Agent. Capitalized terms
used but not otherwise defined herein have the meanings assigned thereto in the
Agreement.
[Insert Name of Transferor]
Dated: By:
------------------------ --------------------------
Name:
-------------------------
Title:
------------------------
-----------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
-2-
165
EXHIBIT 10.09(i)(5)
FORM OF INSTRUCTION FOR EXCHANGE FROM
REGULATION S GLOBAL CERTIFICATE
TO 144A GLOBAL CERTIFICATE
EXCHANGE INSTRUCTIONS
FROM Bankers Trust Company
The Depository Trust Company
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Trade Receivables Backed Certificates (the "Certificates") issued
pursuant to the Receivables Participation Agreement, dated as of
___________, 2000 (the "Agreement"), among Thermadyne Receivables,
Inc., as Transferor, and Bankers Trust Company, as trustee (the
"Trustee")
Pursuant to Section 10.09(i)(iv) of the Agreement, the Trustee hereby
requests that $__________ aggregate principal amount of the Certificate held by
you for our account and represented by the Regulation S Temporary Global
Certificate (CUSIP No. [ ]) (as defined in the Agreement) be exchanged for
an equal principal amount represented by the 144A Global Certificate (CUSIP No.
[ ]) (as defined in the Agreement) to be held by you for our account.
Dated: BANKERS TRUST COMPANY, as Trustee
--------------------
By:
-----------------------------
Name:
Title:
166
TAB 2
167
a. Reg-S
168
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE TRUSTEE (AS DEFINED HEREIN) OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO THE DEPOSITORY TRUST COMPANY,
OR A NOMINEE THEREOF, NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE RECEIVABLES PARTICIPATION AGREEMENT THAT
IS REFERRED TO BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE OF THE UNITED
STATES OF AMERICA. THIS CERTIFICATE IS A REGULATION S TEMPORARY GLOBAL
CERTIFICATE, AS THAT TERM IS DEFINED IN THE RECEIVABLES PARTICIPATION
AGREEMENT THAT IS REFERRED TO BELOW. THE CERTIFICATEHOLDER HEREOF, BY
PURCHASING THIS CERTIFICATE, AGREES THAT INTERESTS IN THIS REGULATION
S TEMPORARY GLOBAL CERTIFICATE MAY NOT BE OFFERED OR SOLD TO A U.S.
PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON PRIOR TO THE
EXCHANGE DATE (AS DEFINED IN THE RECEIVABLES PARTICIPATION AGREEMENT
REFERRED TO BELOW) AND NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS
REGULATION S TEMPORARY GLOBAL CERTIFICATE MAY BE MADE FOR AN INTEREST
IN THE 144A GLOBAL CERTIFICATE OR
Thermadyne Receivables, Inc.
Reg S Certificate
169
IN THE UNRESTRICTED GLOBAL CERTIFICATE UNTIL AFTER THE LATER OF THE
EXCHANGE DATE AND THE DATE ON THE DOCUMENTATION REQUIRED BY THE
RECEIVABLES PARTICIPATION AGREEMENT RELATING TO THE INTEREST HAVE BEEN
PROVIDED IN ACCORDANCE WITH THE TERMS OF THE RECEIVABLES PARTICIPATION
AGREEMENT, TO THE EFFECT THAT THE BENEFICIAL OWNER OR OWNERS OF SUCH
INTEREST ARE NOT U.S. PERSONS. THE CERTIFICATEHOLDER OF THIS
CERTIFICATE AGREES THAT IT WILL, AND EACH SUBSEQUENT CERTIFICATEHOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE OF THE RESALE
RESTRICTIONS REFERRED TO ABOVE.
THERMADYNE RECEIVABLES PROGRAM
CERTIFICATE
CUSIP Number: X00000XX0 Initial Stated Amount: $15,000,000
THIS CERTIFIES THAT Cede & Co. is the registered owner of a fractional
undivided interest in the Transferred Assets as such term is defined in the
Receivables Participation Agreement, dated as of January 31, 2000, (as the same
may be amended, supplemented, amended and restated or otherwise modified from
time to time, the "RPA"), by and among Thermadyne Receivables, Inc., a Delaware
corporation, as transferor ("TRI") and Bankers Trust Company, as trustee
(together with its successors and assigns in such capacity, the "Trustee").
This Certificate is one of the duly authorized Certificates designated and
issued under the RPA. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in Annex I to
the RPA. This Certificate is subject to the terms, provisions and conditions of,
and is entitled to the benefits afforded by, the RPA. The holder of this
Certificate agrees, by virtue of the acceptance hereof, to be bound by the
terms, provisions and conditions of the RPA and the other Program Documents.
Additionally, each Benefit Plan that purchases a Certificate or interest therein
will be deemed to represent and warrant that (i) the acquisition and holding of
the Certificate or any interest therein will not result in a nonexempt
prohibited
Thermadyne Receivables, Inc.
Reg S Certificate
170
transaction under ERISA or the Code or (ii) the Investor or the Certificate
Owner (as applicable) is the general account of an insurance company and the
Class Exemption for Certain Transactions Involving Insurance Company General
Accounts, Prohibited Transferor Class Exemption 95-60, applies to the
acquisition and holding of the certificate by the Investor or the Certificate
Owner (as applicable).
Interest shall accrue on this Certificate for each Fixed Period at a rate
per annum equal to the LIBO Rate for such Fixed Period plus 0.65%, as set forth
in the RPA. This Certificate is subject to prepayment prior to the maturity
hereof to the extent set forth in the RPA. The final legal maturity date of the
Certificate is the Settlement Date in February, 2004.
The RPA may be amended and the rights and obligations of the parties
thereto and of the holder of this Certificate modified as set forth in the RPA.
Unless the certificate of authentication hereon shall have been executed by
or on behalf of the Trustee by the manual signature of a duly authorized
signatory, this Certificate shall not entitle the holder hereof to any benefit
under the RPA or under any other Program Document or be valid for any purpose.
This Certificate does not represent an obligation of, or an interest in,
TRI, any Seller, the Servicer, Thermadyne, Xxxxxx, the Trustee or any Affiliate
of any of them. This Certificate is limited in right of payment to the
Transferred Assets.
As provided in the RPA, and subject to the restrictions on sale, transfer
and disposition set forth therein and in the other Program Documents, upon
surrender for registration of transfer of this Certificate at any office or
agency of the Transfer Agent and Registrar maintained for such purpose, TRI
shall execute and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
class and series which are in authorized denominations of like aggregate
principal amount, and which bears a number that is not contemporaneously
outstanding.
Thermadyne Receivables, Inc.
-3- Reg S Certificate
171
As provided in the RPA, and subject to the restrictions on exchange set
forth therein and in the other Program Documents, at the option of the holder,
this Certificate may be exchanged for other Certificates of authorized
denominations of like aggregate principal amount and bearing numbers that are
not contemporaneously outstanding, upon surrender of this Certificate to be
exchanged at any such office or agency. If this Certificate is so surrendered
for exchange, TRI shall execute, and the Trustee shall authenticate and deliver,
the appropriate number of Certificates.
If this Certificate is presented or surrendered for registration of
transfer or exchange, it shall be accompanied by a written instrument of
transfer in a form satisfactory to the Trustee and the Transfer Agent and
Registrar duly executed by the holder hereof or his attorney-in-fact duly
authorized in a writing delivered to the Transfer Agent and Registrar.
By its acceptance of this Certificate, each holder hereof (a) acknowledges
that it is the intent of TRI, and agrees that it is the intent of such holder
that, for federal, state and local income and franchise tax purposes, the
Certificates will be treated as evidence of indebtedness secured by the
Transferred Assets, (b) agrees to treat this Certificate for federal, state and
local income and franchise tax purposes as indebtedness, and (c) agrees that the
provisions of the RPA and all related Program Documents shall be construed to
further these intentions of the parties.
This Certificate shall be construed in accordance with the laws of the
State of New York, without reference to its conflict of laws principles, and all
obligations, rights and remedies under, or arising in connection with, this
Certificate shall be determined in accordance with the laws of the State of New
York.
Thermadyne Receivables, Inc.
-4- Reg S Certificate
172
IN WITNESS WHEREOF, TRI has caused this Certificate to be executed by its
officer thereunto duly authorized as of the date first above written.
THERMADYNE RECEIVABLES, INC.
By: /s/ XXXXXXX X. XXXX
--------------------------------
Name: XXXXXXX X. XXXX
Title: VICE PRESIDENT, TREASURER
AND ASSISTANT SECRETARY
Thermadyne Receivables, Inc.
S-1 Reg S Certificate
173
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
As of the date first above written, this is one of the Certificates
referred to in the Receivables Participation Agreement.
BANKERS TRUST COMPANY, as Trustee
By: /s/ XXXXX XXXXXX
--------------------------------
Name: XXXXX XXXXXX
Title: ASSISTANT VICE PRESIDENT
Thermadyne Receivables, Inc.
S-2 Reg S Certificate
174
b. 144A
175
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE TRUSTEE (AS DEFINED HEREIN) OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST
COMPANY, OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO THE DEPOSITORY TRUST COMPANY,
OR A NOMINEE THEREOF, NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE RECEIVABLES PARTICIPATION AGREEMENT THAT
IS REFERRED TO BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE OF THE UNITED
STATES OF AMERICA. THE CERTIFICATEHOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) TO TRI, (2) IN
THE UNITED STATES TO A LIMITED NUMBER OF INSTITUTIONAL "ACCREDITED
INVESTORS" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) AND IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (UPON DELIVERY OF THE DOCUMENTATION
REQUIRED BY THE RECEIVABLES PURCHASE AGREEMENT REFERRED TO BELOW AND,
IF THE TRUSTEE SO REQUIRES, AN OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE), (3) IN THE UNITED STATES PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE CERTIFICATEHOLDER
176
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYERS WITHIN
THE MEANING OF RULE 144A (A "QUALIFIED INSTITUTIONAL BUYER"),
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER, AND WHOM THE CERTIFICATEHOLDER HAS INFORMED, IN
EACH CASE, THAT THE OFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (4) IN THE UNITED STATES IN COMPLIANCE
WITH RULE 144 UNDER THE SECURITIES ACT IF AVAILABLE AND UPON DELIVERY
OF AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE TRUSTEE OR (5)
OUTSIDE THE UNITED STATES IN A TRANSACTION COMPLYING WITH THE
PROVISIONS OF REGULATION S UNDER THE SECURITIES ACT, AND IN EACH CASE,
ANY DOCUMENTATION REQUIRED BY THE RPA AND IN EACH CASE IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES OF AMERICA OR
OTHER APPLICABLE JURISDICTION AND SECURITIES AND BLUE SKY LAWS OF THE
STATES OF THE UNITED STATES OF AMERICA. THE CERTIFICATEHOLDER OF THIS
CERTIFICATE AGREES THAT IT WILL, AND EACH SUBSEQUENT CERTIFICATEHOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE OF THE RESALE
RESTRICTIONS REFERRED TO ABOVE.
THERMADYNE RECEIVABLES PROGRAM
CERTIFICATE
CUSIP Number: 00000XXX0 Initial Stated Amount: $30,000,000
THIS CERTIFIES THAT Cede & Co. is the registered owner of a fractional
undivided interest in the Transferred Assets as such term is defined in the
Receivables Participation Agreement, dated as of January 31, 2000 (as the same
may be amended, supplemented, amended and restated or otherwise modified from
time to time, the "RPA"), by and between Thermadyne Receivables, Inc., a
Delaware corporation, as transferor ("TRI") and Bankers Trust Company, as
trustee (together with its successors and assigns in such capacity, the
"Trustee"). This Certificate is one of the duly authorized Certificates
designated and issued under the RPA. To the extent not otherwise defined herein,
the capitalized terms used herein have the meanings assigned to them in Annex I
to the RPA. This Certificate is subject to the terms, provisions and
177
conditions of, and is entitled to the benefits afforded by, the RPA. The holder
of this Certificate agrees, by virtue of the acceptance hereof, to be bound by
the terms, provisions and conditions of the RPA and the other Program Documents.
Additionally, each Benefit Plan that purchases a Certificate or interest therein
will be deemed to represent and warrant that (i) the acquisition and holding of
the Certificate or any interest therein will not result in a nonexempt
prohibited transaction under ERISA or the Code or (ii) the Investor or the
Certificate Owner (as applicable) is the general account of an insurance company
and the Class Exemption for Certain Transactions Involving Insurance Company
General Accounts, the Prohibited Transaction Class Exemption 95-60, applies to
the acquisition and holding of the certificate by the Investor or the
Certificate Owner (as applicable).
Interest shall accrue on this Certificate for each Fixed Period at a rate
per annum equal to the LIBO Rate for such Fixed Period plus 0.65%, as set forth
in the RPA. This Certificate is subject to prepayment prior to the maturity
hereof to the extent set forth in the RPA. The final legal maturity date of the
Certificate is the Settlement Date in February, 2004.
The RPA may be amended and the rights and obligations of the parties
thereto and of the holder of this Certificate modified as set forth in the RPA.
Unless the certificate of authentication hereon shall have been executed by
or on behalf of the Trustee by the manual signature of a duly authorized
signatory, this Certificate shall not entitle the holder hereof to any benefit
under the RPA or under any other Program Document or be valid for any purpose.
This Certificate does not represent an obligation of, or an interest in,
TRI, any Seller, the Servicer, Thermadyne, Xxxxxx, the Trustee or any Affiliate
of any of them. This Certificate is limited in right of payment to the
Transferred Assets.
As provided in the RPA, and subject to the restrictions on sale, transfer
and disposition set forth therein and in the other Program Documents, upon
surrender for registration of transfer of this Certificate at any office or
agency of the Transfer Agent
-3-
178
and Registrar maintained for such purpose, TRI shall execute and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same class and series which are
in authorized denominations of like aggregate principal amount, and which bears
a number that is not contemporaneously outstanding.
As provided in the RPA, and subject to the restrictions on exchange set
forth therein and in the other Program Documents, at the option of the holder,
this Certificate may be exchanged for other Certificates of authorized
denominations of like aggregate principal amount and bearing numbers that are
not contemporaneously outstanding, upon surrender of this Certificate to be
exchanged at any such office or agency. If this Certificate is so surrendered
for exchange, TRI shall execute, and the Trustee shall authenticate and deliver,
the appropriate number of Certificates.
If this Certificate is presented or surrendered for registration of
transfer or exchange, it shall be accompanied by a written instrument of
transfer in a form satisfactory to the Trustee and the Transfer Agent and
Registrar duly executed by the holder hereof or his attorney-in-fact duly
authorized in a writing delivered to the Transfer Agent and Registrar.
By its acceptance of this Certificate, each holder hereof (a) acknowledges
that it is the intent of TRI, and agrees that it is the intent of such holder
that, for federal, state and local income and franchise tax purposes, the
Certificates will be treated as evidence of indebtedness secured by the
Transferred Assets, (b) agrees to treat this Certificate for federal, state and
local income and franchise tax purposes as indebtedness, and (c) agrees that the
provisions of the RPA and all related Program Documents shall be construed to
further these intentions of the parties.
This Certificate shall be construed in accordance with the laws of the
State of New York, without reference to its conflict of laws principles, and all
obligations, rights and remedies under, or arising in connection with, this
Certificate shall be determined in accordance with the laws of the State of New
York.
-4-
179
IN WITNESS WHEREOF, TRI has caused this Certificate to be executed by its
officer thereunto duly authorized as of the date first above written.
THERMADYNE RECEIVABLES, INC.
By: /s/ XXXXXXX X. XXXX
--------------------------------
Name: XXXXXXX X. XXXX
Title: VICE PRESIDENT, TREASURER
AND ASSISTANT SECRETARY
Thermadyne Receivables. Inc.
S-1 144A Certificate
180
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
As of the date first above written, this is one of the Certificates
referred to in the Receivables Participation Agreement.
BANKERS TRUST COMPANY, as Trustee
By: /s/ XXXXX XXXXXX
--------------------------------
Name: XXXXX XXXXXX
Title: ASSISTANT VICE PRESIDENT
Thermadyne Receivables, Inc.
S-2 144A Certificate
181
TAB 3
182
EXECUTION COPY
SECURITY AGREEMENT
This SECURITY AGREEMENT (this "Agreement") dated as of January 31, 2000
by THERMADYNE RECEIVABLES, INC., a Delaware corporation, with its address at 000
Xxxxx Xxxxxx Xxxx, Xxxxx 000; Xx. Xxxxx Xxxxxxxx 00000 ("TRI"), in favor of
BANKERS TRUST COMPANY, as trustee (the "Trustee") under that certain Receivables
Participation Agreement of even date herewith (as the same may hereafter be
amended, restated or otherwise modified from time to time, the "RPA") between
TRI and the Trustee. Capitalized terms used in this Agreement without definition
shall have the meanings ascribed thereto in the RPA and Annex I thereto.
PRELIMINARY STATEMENTS:
WHEREAS, TRI, Thermadyne, as guarantor, and Xxxxxx have entered into a
Receivables Purchase and Sale Agreement dated as of even date herewith (such
agreement, as it may hereafter be further amended, restated or otherwise
modified from time to time, being the "Second Tier RPSA") to provide for the
sale from Xxxxxx to TRI of the Receivables and certain other assets related
thereto; and
WHEREAS, TRI and the Trustee have entered into the RPA ,described above to
provide for the transfer from TRI to the Trustee, as representative of the
Investors, of undivided percentage ownership interests in the Receivables and
other assets acquired from Xxxxxx; and
WHEREAS, it is a condition to the effectiveness of the RPA that TRI shall
have granted the security interest contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises, TRI hereby agrees with
the Trustee as follows:
SECTION 1. Grant of Security; Representations and Warranties. (a) TRI
hereby assigns and pledges to the Trustee for the benefit of the Trustee and the
Investors, and grants a security interest in, all of TRI's right, title and
percentage ownership interest (if any) in and to the Transferred Assets
(collectively, the "Collateral").
183
(b) TRI hereby represents and warrants that this Agreement creates a valid
and perfected first priority security interest in the Collateral. TRI hereby
further represents and warrants that its principal place of business and chief
executive office, and the place where its Records pertaining to the Collateral
will be kept shall at all times be located at the addresses referred to in
Exhibit 6.08 to the RPA (or at such other locations as to which the notice and
other requirements specified in Section 4 below shall have been satisfied).
SECTION 2. Security for Obligations. This Agreement secures the payment of
all recourse obligations of TRI now or hereafter existing under or in connection
with the RPA, including, without limitation, obligations for all breaches of
representations, warranties and covenants of TRI, all obligations of TRI to
remit any Collections of Receivables pursuant to the RPA, all fees, costs,
expenses, taxes and indemnifications owed under the RPA, and all obligations of
TRI now or hereafter existing under this Agreement (all such obligations of TRI
being the "Obligations").
SECTION 3. Grantor Remains Liable. Anything herein to the contrary
notwithstanding, (a) TRI shall remain liable under the contracts, documents,
instruments and agreements included in the Collateral to the extent set forth
therein to perform all of its duties and obligations, if any, thereunder to the
same extent as if this Agreement had not been executed, (b) the exercise by the
Trustee of any of the rights hereunder shall not release TRI from any of its
duties or obligations, if any, under the contracts, documents, instruments and
agreements included in the Collateral, and (c) neither the Trustee nor the
Investors shall have any obligation or liability under the contracts, documents,
instruments and agreements included in the Collateral by reason of this
Agreement, nor shall either the Trustee or the Investors be obligated to perform
any of the obligations or duties, if any, of TRI thereunder or to take any
action to collect or enforce any claim for payment assigned hereunder.
SECTION 4. Further Assurances. TRI will keep its principal place of
business and chief executive office, and the office where it keeps the Records,
at the address of TRI referred to in Exhibit 6.08 to the RPA or, upon thirty
(30) days prior written notice to the Trustee, at such other locations within
the United States where all actions reasonably requested by the Trustee to
protect and perfect the interest of the Trustee and the Investors in the
Collateral have been taken and completed. TRI will not make any change to its
corporate name or use any trade names,
-2-
184
fictitious names, assumed names or "doing business as" names, unless prior to
the effective date of any such name change or use, TRI delivers to the Trustee
such executed financing statements, or amendments to existing financing
statements as are necessary to reflect such name change or use. TRI 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 as is necessary
in order to perfect, protect or more fully evidence the security interest
granted to the Trustee hereunder, or to enable the Trustee to exercise or
enforce any of its rights hereunder. Without limiting the generality of the
foregoing, TRI will execute and file such financing or continuation statements,
or amendments thereto or assignments thereof, and such other instruments or
notices, as may be reasonably necessary or appropriate to perfect or maintain
the perfection of the security interests granted hereunder. TRI hereby
authorizes the Trustee, and gives the Trustee its irrevocable power of attorney,
which authorization is coupled with an interest, to take any and all steps in
the name of TRI, which are reasonably necessary or desirable in the reasonable
determination of the Trustee, to perfect and protect the Trustee's security
interest in the Collateral. TRI hereby further authorizes the Trustee to file
one or more financing or continuation statements, and amendments thereto and
assignments thereof, relative to all or any of the Collateral now existing or
hereafter arising without the signature of TRI where permitted by law. A carbon,
photographic or other reproduction of this Agreement or any financing statement
covering the Collateral, or any part thereof, shall be sufficient as a financing
statement. TRI shall, upon the request of the Trustee at any time after the
occurrence and during the continuance of a Liquidation Event and at TRI's
expense, notify the Obligors of the Receivables included in the Collateral, or
any of them, of the Trustee's security interest therein. If TRI fails to perform
any of its agreements or obligations under this Agreement or under the RPA,
following expiration of any applicable notice and cure period, the Trustee may
(but shall not be required to) itself perform, or cause performance of, such
agreement or obligation, and the expenses of the Trustee incurred in connection
therewith shall be payable by TRI upon the Trustee's demand therefor. For
purposes of enabling the Trustee to exercise its rights described in the
preceding sentence and elsewhere in this Agreement, TRI hereby authorizes the
Trustee, (in each case to the extent permitted by, and in a manner consistent
with, the terms and conditions of the RPA) at any time upon the occurrence and
during the continuance of a Liquidation Event, to take any and all steps in
TRI's name and on behalf of TRI necessary or desirable, in the determination of
the
-3-
185
Trustee, to collect all amounts due under any and all of the Collateral,
including, without limitation, endorsing TRI's name on checks and other
instruments representing Collections and enforcing such Receivables and the
related Contracts.
SECTION 5. The Trustee's Duties. The powers conferred on the Trustee
hereunder are solely to protect the interests in the Collateral granted to it
for the benefit of the Investors and shall not impose any duty upon the Trustee
to exercise any such powers. Except for the safe custody of monies actually
received by it hereunder, the Trustee shall have no duty as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral, except the duty imposed by Section 9-502 of the
UCC to proceed in a commercially reasonable manner in the event that the Trustee
undertakes to collect any of the Collateral.
SECTION 6. Remedies. Upon the occurrence and during the continuance of a
Liquidation Event, the Trustee may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein, under the RPA or
otherwise available to it, all the rights and remedies of a secured party on
default under the UCC of all applicable jurisdictions and other applicable
laws, which rights shall be cumulative.
SECTION 7. Amendments, Etc. No amendment or waiver of any provision of this
Agreement, nor consent to any departure herefrom by TRI or the Trustee, shall in
any event be effective unless the same shall be in writing and signed by the
party against whom enforcement of such amendment, waiver or consent is sought,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 8. Addresses for Notices. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including facsimile communication) and mailed, transmitted or delivered, to
each of the Trustee or TRI (as appropriate) and shall be effective if given in
the manner set forth in Section 11.05 of the RPA.
SECTION 9. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Collateral and shall remain in full force
and effect until, and shall terminate when, the Collection Date has occurred and
all Obligations owing hereunder shall have been fully paid and satisfied. This
Agreement shall be binding upon TRI, its successors, transferees
-4-
186
and assigns, and shall inure to the benefit of the Trustee and the Investors.
Without limiting the generality of the foregoing, in the event that any of the
Trustee and/or the Investors assigns or otherwise transfers all or any portion
of their respective rights under the RPA to any other Person in accordance with
the terms of the RPA, then such other Person shall thereupon become vested with
all the benefits in respect thereof which are granted herein. Upon the repayment
of all non-contingent Obligations, this Agreement shall terminate, and the
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to TRI. Upon any such termination, the Trustee will, at
TRI's expense, execute and deliver to TRI such documents as TRI shall reasonably
request to evidence such termination.
SECTION 10. Expenses; Indemnification. TRI shall pay on demand all
reasonable out-of-pocket fees and expenses (including reasonable attorneys fees
and expenses) of the Trustee incurred in connection with the preparation,
execution, delivery, administration, amendment, modification, waiver of and
enforcement against TRI of this Agreement. In addition, TRI will pay any and all
stamp and other taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing, recording or enforcement of this Agreement
and hereby indemnifies and saves the Trustee harmless from and against any and
all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
SECTION 11. Execution in Counterparts; Severability. 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. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE INTERESTS OF THE TRUSTEE IN THE
-5-
187
COLLATERAL OR REMEDIES HEREUNDER ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK.
SECTION 13. Section Headings. The section headings contained in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
[Remainder of Page Intentionally Left Blank.]
-6-
188
IN WITNESS WHEREOF, TRI has caused this Agreement to be duly executed and
delivered by its officer thereunto duly authorized as of the date first above
written.
THERMADYNE RECEIVABLES, INC.
By: /s/ XXXXXXX X. XXXX
--------------------------------
Name: XXXXXXX X. XXXX
Title: VICE PRESIDENT
S-1
189
ACCEPTED:
BANKERS TRUST COMPANY,
as Trustee
By: /s/ XXXXX XXXXXX
-------------------------------
Name: XXXXX XXXXXX
Title: ASSISTANT VICE PRESIDENT
S-2
190
TAB 4
191
================================================================================
RECEIVABLES PURCHASE AND SALE AGREEMENT
Dated as of January 31, 2000
among
CERTAIN ENTITIES,
as Sellers
and
XXXXXX EQUIPMENT COMPANY,
as Purchaser
================================================================================
192
TABLE OF CONTENTS
ARTICLE I DEFINITIONS .............................................. 1
1.01. Certain Definitions ...................................... 1
1.02. Accounting Terms ......................................... 1
1.03. Other Terms .............................................. 2
1.04. Computation of Time Periods .............................. 2
ARTICLE II AMOUNTS AND TERMS OF THE PURCHASES ....................... 2
2.01. Agreement to Purchase .................................... 2
2.02. Payment for Purchases; Adjustments to Purchase Price ..... 4
2.03. Calculation of Purchase Price ............................ 6
2.04. Payments and Computations, Etc. .......................... 7
2.05. Transfer of Records to Xxxxxx ............................ 7
2.06. Additional Sellers ....................................... 8
2.07. Termination of Sellers ................................... 9
ARTICLE III REPRESENTATIONS AND WARRANTIES ........................... 10
3.01. Representations and Warranties of Sellers ................ 10
3.02. Representations and Warranties of Xxxxxx ................. 15
ARTICLE IV GENERAL COVENANTS OF SELLERS ............................. 16
4.01. Affirmative Covenants of Sellers ......................... 16
4.02. General Reporting Requirements of Sellers ................ 20
4.03. Negative Covenants of Sellers ............................ 21
ARTICLE V ADMINISTRATION AND COLLECTION ............................ 23
5.01. Collection of Receivables ................................ 23
5.02. Designation of the Servicer .............................. 24
5.03. Responsibilities of Sellers .............................. 24
5.04. Further Action Evidencing Purchases ...................... 25
5.05. Application of Collections ............................... 26
5.06. No Recourse for Credit Problems .......................... 26
ARTICLE VI INDEMNIFICATION .......................................... 27
6.01. Indemnities by Sellers ................................... 27
ARTICLE VII MISCELLANEOUS ............................................ 30
7.01. Amendments, Etc. ......................................... 30
7.02. Notices, Etc. ............................................ 30
7.03. No Waiver; Remedies ...................................... 31
7.04. Binding Effect; Assignability ............................ 31
(i)
193
7.05. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
PERSONAL SERVICE AND VENUE; WAIVER OF JURY TRIAL ......... 32
7.06. Costs, Expenses and Taxes ................................ 33
7.07. References to Xxxxxx ..................................... 34
7.08. Execution in Counterparts; Severability .................. 34
7.09. Termination Date ......................................... 34
7.10. No Recourse .............................................. 35
7.11. No Proceedings ........................................... 35
7.12. Entire Agreement ......................................... 35
7.13. Survival of Agreement .................................... 35
(ii)
194
ANNEXES, SCHEDULES AND EXHIBITS
Annex I - Defined Terms
Schedule 3.01(h) - Location of Records and Computer Software
Schedule 3.01(i) - List of Lockbox Banks
Schedule 3.01(j) - Names Under Which Sellers Have Conducted Business
Schedule 3.01(1) - List of Computer Programs
Exhibit A - Form of Seller Purchase Price Note
Exhibit B - Credit and Collection Policy
Exhibit C - Form of Assumption Agreement
(iii)
195
RECEIVABLES PURCHASE AND SALE AGREEMENT
THIS RECEIVABLES PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as
of January 31, 2000 is entered into among the Persons listed on the signature
pages hereto under the heading "Sellers", as sellers ("Sellers"), and Xxxxxx
Equipment Company ("Xxxxxx"), a Delaware corporation, as purchaser.
WITNESSETH:
WHEREAS, each Seller severally wishes to sell accounts receivable and
certain related assets which it now owns and from time to time hereafter will
own to Xxxxxx, and Xxxxxx wishes to purchase such receivables and related
assets;
WHEREAS, Xxxxxx is contemporaneously herewith entering into an agreement
pursuant to which it will sell such accounts receivable and related assets to
Thermadyne Receivables, Inc., a Delaware corporation ("TRI");
WHEREAS, Xxxxxx and Sellers have agreed to enter into this Agreement to
evidence the terms and conditions under which Xxxxxx shall purchase such
accounts receivable and certain related assets from Sellers;
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by each party hereto, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Definitions. For all purposes of this Agreement,
except as otherwise specifically provided herein, capitalized terms used in this
Agreement without definition shall have the meanings ascribed to such terms in
Annex I hereto.
SECTION 1.02. Accounting Terms. Under this Agreement, all accounting terms
not specifically defined herein shall be
-1-
196
interpreted, all accounting determinations made and all financial statements
prepared in accordance with GAAP.
SECTION 1.03. Other Terms. All other undefined terms contained in this
Agreement shall, unless the context indicates otherwise, have the meanings
provided for by the UCC to the extent the same are used or defined therein. The
words "herein," "hereof," and "hereunder" and other words of similar import
refer to this Agreement as a whole, including the annexes, exhibits and
schedules hereto, as the same may from time to time be amended, supplemented or
otherwise modified and not to any particular section, subsection, or clause
contained in this Agreement, and all references to Sections, Annexes, Exhibits
and Schedules shall mean, unless the context clearly indicates otherwise, the
Sections hereof and the Annexes, Exhibits and Schedules attached hereto, the
terms of which Annexes, Exhibits and Schedules are hereby incorporated into this
Agreement. Whenever appropriate, in the context, terms used herein in the
singular also include the plural, and vice versa.
SECTION 1.04. Computation of Time Periods. 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
mean "to but excluding."
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01. Agreement to Purchase. (a) On the terms and conditions
hereinafter set forth, on each Business Day from and after the Effective Date
until the occurrence of the Termination Date, Xxxxxx agrees (except as otherwise
provided in Section 2.01(c)) to purchase from each Seller, and each Seller
agrees to sell to Xxxxxx, (i) all of the Receivables of such Seller outstanding
as of the Business Day before such date, which have not been previously
purchased by Xxxxxx, (ii) all of the Related Security relating to such
Receivables, (iii) all Collections with respect to and other proceeds of such
Receivables and Related Security, (iv) all rights and interests of such Seller
in respect of such Receivables and Related Security, and (v) all proceeds of
-2-
197
the foregoing (collectively and with respect to all Sellers, the "Acquired
Assets"). Until the Termination Date, each Purchase described in the preceding
sentence shall occur no later than 4:00 p.m. (New York City time) on the date of
such Purchase concurrently with payment of the Purchase Price required under
Section 2.02 (or, in the case of the initial Purchase hereunder, concurrently
with such payment by Thermadyne described therein). Prior to making any Purchase
hereunder, Xxxxxx may request from Sellers, and Sellers shall deliver, such
approvals, information, reports or documents as Xxxxxx may reasonably request.
(b) It is the intention of the parties hereto that each Purchase of
Receivables to be made hereunder shall constitute a "sale of accounts," as such
term is used in Article 9 of the UCC, and not a loan secured by such accounts.
Except for Noncomplying Receivables Adjustments and Dilution Adjustments each
sale of Receivables by Sellers to Xxxxxx is made without recourse to Sellers;
provided, however, that (i) each Seller shall be liable to Xxxxxx for all
representations, warranties, covenants and indemnities made by such Seller
pursuant to the terms of this Agreement (including, without limitation, under
Section 6.01), and (ii) such sale does not constitute and is not intended to
result in an assumption by Xxxxxx or any assignee thereof of any obligation of
Sellers or any other Person arising in connection with the Receivables, the
Related Security and the related Contracts, or any other obligations of Sellers
or any other Person. In view of the intention of the parties hereto that the
Purchases of Receivables to be made hereunder shall constitute a sale of such
Receivables rather than a loan secured by such Receivables, Sellers agree to
note in their external financial statements that their Receivables have been
sold to Xxxxxx.
(c) Notwithstanding any other provision of this Article II, Xxxxxx shall
not be required to purchase from any Seller nor shall any Seller be required to
sell to Xxxxxx any Receivables originated by such Seller on or after the earlier
of (i) the Termination Date, (ii) the date of any Insolvency Event occurring
with respect to such Seller or Xxxxxx, or (iii) the discovery by Xxxxxx of any
Liquidation Event described in clause (h) of the definition thereof with respect
to Receivables originated by such Seller or Related Security or Collections with
respect thereto; provided, however that if (A) such Insolvency Event arises as a
result of an involuntary bankruptcy or other proceeding filed
-3-
198
against such Seller, and such proceeding is dismissed or otherwise terminated
prior to the Termination Date, or (B) if such Liquidation Event is cured
(without prejudice to the Investors) prior to the Termination Date, then, in
either such case, Xxxxxx shall automatically resume its purchase of Receivables
from such Seller hereunder.
SECTION 2.02. Payment for Purchases; Adjustments to Purchase Price. (a)
Each Purchase hereunder shall be consummated through Victor's payment of the
applicable Purchase Price therefor in cash, except (i) as provided in Section
2.02(d) below, and (ii) that Xxxxxx may set off against the amount of any such
payment amounts then owing to Xxxxxx as Dilution Adjustments, Noncomplying
Receivables Adjustments and/or other amounts owing to Xxxxxx under this
Agreement.
(b) It shall be a condition precedent to each Purchase hereunder from
Sellers that (i) the representations and warranties of each contained in Section
3.01 are correct in all material respects as to it and as to the Receivables
purchased from it on and as of such day as though made on and as of such date
(except for representations and warranties which relate to a specific date
only), and (ii) no event has occurred and is continuing, or would result from
such Purchase, which constitutes a Liquidation Event. Sellers, by accepting the
proceeds of the Purchase Price for a Purchase, shall be deemed to have certified
to Xxxxxx the satisfaction of the foregoing conditions precedent; provided,
however, that no Seller shall be deemed to have certified the non-existence of a
Liquidation Event of which it does not have knowledge, which Liquidation Event
may have arisen solely on account of actions or omissions of Xxxxxx. Upon the
payment of the Purchase Price for any Purchase, title to the Acquired Assets
included in such Purchase shall vest in Xxxxxx, whether or not the conditions
precedent to such Purchase were in fact satisfied.
(c) Xxxxxx may elect to pay all or part of the applicable Purchase Price
for all Purchases of Receivables to be made on any day by paying cash. However,
for administrative convenience, Xxxxxx and Sellers anticipate that Xxxxxx will
ordinarily pay such Purchase Price by borrowing from the applicable Seller (as
provided in clause (d) below), subject to repayment of such borrowings at the
time each month when all intercompany
-4-
199
transactions among Xxxxxx and Sellers are settled. A Seller may, by prior
written notice to Xxxxxx, revoke Victor's authority to so borrow on any day when
Xxxxxx has sufficient funds to pay in cash the full Purchase Price owed on such
day to such Seller.
(d) On any day on which Xxxxxx does not pay the full Purchase Price owed to
a Seller in xxxx, Xxxxxx shall pay the remainder of such Purchase Price by
borrowing under its promissory notes, in the form of Exhibit A attached hereto
(each a "Seller Purchase Price Note"), issued in favor of such Seller and such
Seller shall have irrevocably agreed to advance, and shall be deemed to have
advanced, a revolving loan in the amount so specified by Xxxxxx. Such borrowing
shall occur automatically, without further action by any Person. Each such
revolving loan shall be payable in accordance with the terms and provisions of
the applicable Seller Purchase Price Note, this Agreement and Article VIII of
the RPA. A Seller may evidence the making of each revolving loan by recording
the date and amount thereof on the grid attached to its Seller Purchase Price
Note (or any continuation thereof); provided that failure to make any such
recordation on such grid or any error in such grid shall not adversely affect
such Seller's rights to recover the outstanding unpaid principal amount of the
revolving loans made under its Seller Purchase Price Note.
(e) On each Business Day, each Seller shall (or shall cause the Servicer
to) report the amount of Dilution, Volume Rebate Offsets, if any, and the
Noncomplying Receivables Adjustment applicable to such day. The Dilution
Adjustment owing on account of such Dilution, and any Volume Rebate Offsets,
shall be deducted from the Purchase Price payable on such date; provided,
however, that if such Dilution Adjustment shall exceed such Purchase Xxxxx,
Xxxxxx shall be entitled to a reduction in the principal amount of the relevant
Seller's Seller Purchase Price Note and, if such principal amount shall have
been reduced to zero, to a credit against the Purchase Price payable for future
sales of such Seller's Receivables, in an aggregate amount equal to such excess;
and provided, further, that if any such credit is not fully utilized within five
(5) Business Days, then such Seller shall pay to Xxxxxx the remaining amount of
such credit in cash. If any such Dilution relates to goods which are returned to
a Seller or repossessed by a Seller, then, concurrently with payment of such
Dilution Adjustment (whether through offset or
-5-
200
otherwise), Xxxxxx shall assign and transfer to such Seller, without any
further action or consideration, all of Victor's right, title and interest in
such returned or repossessed goods. In addition, if on any Business Day (i) any
Receivables previously sold to Xxxxxx under this Agreement have been discovered
to be Noncomplying Receivables, then such Noncomplying Receivables Adjustment
shall also be deducted from the Purchase Price payable to the appropriate Seller
on such day; provided, however, if (after giving effect to the reduction thereto
on account of the Dilution Adjustment on such day), the Noncomplying Receivables
Adjustment exceeds such Purchase Xxxxx, Xxxxxx shall be entitled to a credit
against the Purchase Price payable for future sales of Receivables; and
provided, further, that if any such credit is not fully utilized within five (5)
Business Days, then such Seller shall pay to Xxxxxx the remaining amount of such
credit in cash. After the Liquidation Period has commenced, all further Dilution
Adjustments and Noncomplying Receivables Adjustments owing by Sellers must be
paid in cash within five (5) Business Days of the identification thereof. If, on
any date, the Servicer notifies Xxxxxx that Xxxxxx has received Collections on
account of a Noncomplying Receivable for which a Noncomplying Receivables
Adjustment was previously made, then the amount of such Collections must be
added to the Purchase Price payable to the Seller that previously paid the
amount of such Noncomplying Receivable on such date.
SECTION 2.03. Calculation of Purchase Price. (a) The Purchase Price
Percentage applicable to Purchases from each Seller hereunder shall be set forth
in Schedule 1 of Annex I hereto for the period until (but not including) the
first Settlement Date. Thereafter and from and after each subsequent Settlement
Date, the Purchase Price Percentage applicable to Purchases from a Seller
hereunder shall be as set forth in the most recent Settlement Statement prepared
by the Servicer pursuant to Section 5.03(b) of the Second Tier RPSA, and the
Purchase Price owed for any Business Day shall be as set forth in the Daily
Report prepared by the Servicer pursuant to Section 5.03(b) of the Second Tier
RPSA. Sellers agree to provide to the Servicer on a timely basis all information
necessary to calculate the applicable Purchase Price Percentage and the
applicable Purchase Price.
-6-
201
(b) Until Xxxxxx shall notify Sellers or the Servicer of any exceptions to
the calculations contained in any Daily Report or Settlement Statement, each
such Daily Report and Settlement Statement shall be deemed to be correct as
originally delivered. If Xxxxxx shall have notified Sellers or the Servicer of
any exceptions to the Daily Report or Settlement Statement, Sellers, the
Servicer and Xxxxxx shall promptly endeavor to resolve the matters set forth in
such notice. Until such resolution is agreed upon, however, the Daily Report or
Settlement Statement originally delivered by the Servicer shall, absent manifest
error, continue to be presumed correct for purposes of calculating the
applicable Purchase Price payable hereunder until a resolution is reached to the
contrary. Nothing contained in this Section 2.03(b), however, shall be deemed to
limit the rights of Xxxxxx under Section 6.01.
SECTION 2.04. Payments and Computations, Etc. All amounts to be paid by
Xxxxxx to Sellers or by Sellers to Xxxxxx hereunder shall be paid in accordance
with the terms hereof no later than 4:00 p.m. (New York City time) on the day
when due in Dollars in immediately available funds to such account as Sellers or
Xxxxxx, as applicable, may from time to time specify in writing. Payments
received by Sellers or Xxxxxx after such time shall be deemed to have been
received on the next Business Day. In the event that any payment becomes due on
a day which is not a Business Day, then such payment shall be made on the next
succeeding Business Day. Each party hereto shall, to the extent permitted by
law, pay to the other party, on demand, interest on all amounts not paid when
due hereunder at two percent (2%) per annum above the Discount Rate in effect on
the date such payment was due; provided, however, that such interest 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 365 or, as applicable 366 days for the actual number of days (including the
first but excluding the last day) elapsed.
SECTION 2.05. Transfer of Records to Xxxxxx. (a) Each Purchase of
Receivables hereunder shall include the transfer to Xxxxxx of all of Sellers'
right and title to and interest in the Records relating to such Receivables and
Sellers hereby agree that such transfer shall be effected automatically with
each such Purchase, without any further documentation. In connection with
-7-
202
such transfer, Sellers shall use all reasonable efforts to enable Xxxxxx to use
all software used by Sellers or any Seller to account for the Receivables, to
the extent necessary to administer the Receivables.
(b) Sellers shall take such action reasonably requested by Xxxxxx, from
time to time hereafter, that may be necessary or appropriate to ensure that
Xxxxxx has (i) an enforceable ownership interest in the Records relating to the
Receivables purchased from Sellers hereunder and (ii) an enforceable right
(whether by license or sublicense or otherwise) to use all of the computer
software used to account for the Receivables and/or to recreate such Records.
SECTION 2.06. Additional Sellers. At any time prior to the Termination
Date, Xxxxxx may designate any of the Subsidiaries of Thermadyne that is a
resident of the United States and of which Thermadyne owns (directly or
indirectly) at least eighty percent (80%) of the issued and outstanding equity
as an additional "Seller" for purposes of the Program Documents and such
Subsidiary shall, subject to the conditions precedent set forth below, become a
"Seller" for all purposes and to the same extent as if originally a party to the
Program Documents and shall be bound by and entitled to the benefits of the
Program Documents. The addition of any Subsidiary as a "Seller" hereunder shall
be subject to the satisfaction of the conditions precedent that (i) the Servicer
shall have delivered to the Trustee (with a copy for the Rating Agency) a pro
forma Settlement Statement for the most recent Collection Period which shall
recalculate the Applicable Reserve Ratio including the historical performance of
the Receivables of such additional Seller; (ii) such additional Seller shall
have executed an Assumption Agreement substantially in the form of Exhibit C
(with the annexes thereto appropriately completed); (iii) except as otherwise
contemplated in Section 2.02(b), the representations and warranties made by the
Initial Sellers as of the Effective Date shall be made by such additional Seller
as of the date of Victor's initial Purchase from it and shall be true and
correct as to such additional Seller in all material respects as of such date;
(iv) the Servicer, TRI, the Trustee and the Rating Agency shall have received,
in form and substance reasonably satisfactory to each of them, an executed copy
of such Assumption Agreement and such evidence of legal existence and good
standing, secretary's certificates, UCC lien
-8-
203
search reports, UCC financing statements, legal opinions and similar
documentation required of the Initial Sellers on or prior to the Effective Date
and such other documentation as may be reasonably required by Xxxxxx, TRI or the
Trustee; (v) the Rating Agency Condition shall have been satisfied if after
giving effect to such addition, either such additional Seller would be a
Significant Seller or more than three (3) Sellers shall have been added in any
fiscal year of TRI. Upon the satisfaction of all such conditions precedent with
respect to any such additional Seller, each of the applicable schedules and
exhibits hereto shall be automatically deemed amended in accordance with the
applicable Assumption Agreement, without any further action on the part of any
of the parties hereto.
SECTION 2.07. Termination of Sellers. At any time when more than one (1)
Person is a Seller, Xxxxxx may terminate the obligation of a Seller (a
"Terminating Seller") to sell its Receivables and Related Security to Xxxxxx,
and Victor's obligation to sell such items to TRI, if:
(i) such Terminating Seller shall have given Xxxxxx and TRI not less
than thirty (30) days prior written notice of such Seller's intention to
terminate such obligations, which notice shall be given by TRI to the
Trustee and the Rating Agency;
(ii) the chief financial officer of Xxxxxx shall have certified that
the termination by the Terminating Seller of its status as a Seller will
not have a Material Adverse Effect;
(iii) the Servicer shall have delivered to the Trustee (with a copy
for the Rating Agency) a pro forma Settlement Statement for the most recent
Collection Period which recalculates the Applicable Reserve Ratio excluding
the historical performance of the Receivables of such Terminating Seller;
and
(iv) both immediately before and after giving effect to such
termination by the Terminating Seller, no Liquidation Event or Unmatured
Liquidation Event shall have occurred and be continuing.
-9-
204
Any termination of a Seller pursuant to this Section 2.07 shall become
effective on the first Business Day that follows the day on which the
requirements of foregoing clauses (i) through (iii) shall have been satisfied
(or such later date specified in the notice or certificate referred to in such
clauses). Any termination by a Seller pursuant to this Section 2.07 shall
terminate such Seller's right and obligation to sell its Receivables and Related
Security to Xxxxxx and Victor's agreement to purchase from Sellers such
Receivables and Related Security; provided, however, that such termination shall
not relieve Xxxxxx or such Terminating Seller of any of its other obligations
under the Program Documents, to the extent such obligations related to
Receivables (and the Related Security with respect thereto) originated by such
Terminating Seller prior to the effective date of such termination.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of Sellers. Each Seller
represents and warrants that as of the Effective Date and (except for
representations and warranties which relate to a specific date only) as of the
date of each Purchase:
(a) It is duly organized, validly existing and in good standing under the
laws of the state of its organization, and is duly qualified to do business and
is in good standing as a foreign entity in each jurisdiction where its ownership
of property or the conduct of business requires such qualification, except where
the failure to be so qualified could not reasonably be expected to have a
Material Adverse Effect.
(b) The execution, delivery and performance by it of this Agreement, the
other Program Documents to which it is a party and all other agreements,
instruments and documents delivered by such Seller hereunder and thereunder, and
the transactions contemplated hereby and thereby, are within such Seller's
powers, have been duly authorized by all necessary action, and do not and will
not (i) result in or require the creation of any Lien upon or with respect to
any of its properties except as created in favor of Xxxxxx, TRI or the Trustee
under the Program Documents
-10-
205
or (ii) violate, conflict with or result in a breach or default under any of the
following (which, in the case of clause (B) and (C) below, would reasonably be
expected to cause a Material Adverse Effect): (A) such Seller's organizational
documents; (B) any law, rule or regulation applicable to such Seller or its
property; (C) any contractual restriction contained in any material indenture,
loan or credit agreement, lease, mortgage, security agreement, bond, note, or
other agreement or instrument binding on such Seller or to which its property is
subject; or (D) any order, writ, judgment, award, injunction or decree binding
on such Seller or to which its property is subject. No transaction contemplated
hereby requires compliance with any bulk sales act or similar law. The Program
Documents to which it is a party have been duly executed and delivered on behalf
of such Seller.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or other Person is
required for the due execution, delivery and performance by such Seller of this
Agreement, any other Program Document or any other agreement, document or
instrument delivered hereunder or thereunder except for the filing of UCC
financing statements to evidence Victor's ownership interests in the Receivables
acquired from such Seller and all proceeds thereof, which filings have been duly
made and are in full force and effect, and for other consents which have been
duly obtained.
(d) This Agreement and each of the other Program Documents to which such
Seller is a party constitutes the legal, valid and binding obligations of such
Seller enforceable against such Seller in accordance with their terms, except as
such 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, including principles of commercial
reasonableness, good faith and fair dealing, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e) Immediately prior to Victor's acquisition of each Acquired Asset from
such Seller, such Seller shall be the lawful owner of, and have good title to,
such Acquired Asset. Upon Victor's acquisition of each Receivable from such
Seller, Xxxxxx
-11-
206
shall acquire all of the right, title and interest of such Seller in such
Receivable and all of such Seller's Acquired Assets relating thereto, free and
clear of any Liens (except Permitted Liens). The conveyances of such Seller's
Acquired Assets from such Seller to Xxxxxx constitute true and valid sales or
contributions and transfers for consideration (and not merely a pledge of such
Seller's Acquired Assets for security purposes) enforceable against the
creditors of such Seller and no such Seller's Acquired Assets shall constitute
property of such Seller. No effective financing statement or other instrument
similar in effect covering all or any part of such Seller's Acquired Assets
naming such Seller as assignor or debtor shall at such time be on file in any
filing or recording office except as may be filed in favor of Xxxxxx, TRI,
Trustee or their respective assigns pursuant to the Program Documents.
(f) The use of all funds received by such Seller under this Agreement will
not violate Regulations T, U and X, as in effect from time to time.
(g) No information, exhibit, financial statement, document, book, record or
report furnished or to be furnished by such Seller to Xxxxxx or its successors
and assigns (including the Trustee and the Investors) in connection with this
Agreement or any of the other Program Documents (including without limitation
information in the Offering Memorandum) is or shall be inaccurate in any
material respect, or contains or shall contain any material misstatement of
fact, or omits or shall omit to state a material fact or any fact necessary to
make the statements contained therein not materially misleading in light of the
circumstances under which they were made; provided that the parties hereto
understand and agree that one or more mistakes in the calculation of the Net
Eligible Receivables (or in information supplied for purposes of such
calculation) that causes the Net Eligible Receivables to be overstated by less
than $150,000.00 (in the aggregate for all such mistakes by all parties) and
such miscalculation, after the relevant Seller became aware of it, has
continued uncorrected for a period not exceeding two (2) days shall not be
considered material for purposes of this representation and warranty.
(h) The principal place of business and chief executive office of such
Seller are located at the address of such Seller
-12-
207
listed in Section 7.02 and the locations of the offices where the Records and
computer software of such Seller are kept are listed on Schedule 3.01(h) (or at
such other locations, notified to Xxxxxx in accordance with Section 4.01(d), in
jurisdictions where all action required by Section 5.04 has been taken and
completed).
(i) Each Obligor with respect to Receivables has been instructed to remit
payment on the Receivables either to (1) one of the Lockbox Accounts to be
utilized by Xxxxxx or (2) directly to the Collection Account. From and after the
Effective Date, such Seller will have no right, title and/or interest to any of
the Lockbox Accounts with respect to the Receivables of such Seller and will
not, and will not permit any Seller to, maintain lockbox accounts in its own
name for the collection of such Receivables. The account numbers of all Lockbox
Accounts, together with the names and addresses of all the Lockbox Banks
maintaining such Lockbox Accounts, are specified in Schedule 3.01(i).
(j) During the past five (5) years such Seller has had no trade names,
fictitious names, assumed names or any other names under which it has done or is
doing business except as set forth on Schedule 3.01(j).
(k) There are no actions, suits or proceedings pending, or to the knowledge
of such Seller threatened, against it or affecting it or its property in any
court, or before any arbitrator of any kind, or before or by any governmental
body, which (i) challenge the validity, legality or enforceability of this
Agreement or any of the other Program Documents, or (ii) if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
(1) All of the computer software used by such Seller to account for the
Receivables is set forth in Schedule 3.01(1) hereto. Such Seller, Xxxxxx and
its assigns have an enforceable right (whether pursuant to Section 2.05
hereunder or by separate sublicense) to use all such computer software to the
extent necessary for administering the Receivables.
(in) Each Receivable of such Seller represented to be an Eligible
Receivable in any Daily Report, Settlement Statement or
-13-
208
other report or writing furnished by such Seller to Xxxxxx or its successors or
assigns (including the Trustee and the Investors) shall, in fact, satisfy the
eligibility requirements set forth in the definition of Eligible Receivable.
(n) Such Seller, both prior to and on the Effective Date, (i) is not
"insolvent" (as such term is defined in Section 101(31) (A) of the Bankruptcy
Code); (ii) is able to pay its debts as they mature; and (iii) does not have
unreasonably small capital for the business in which it is engaged or for any
business or transaction in which it is about to engage.
(o) Such Seller is entering into the transactions contemplated by the
Program Documents in reliance on TRI's identity as a separate legal entity from
such Seller and each of its Affiliates other than TRI, and acknowledges that TRI
and the other parties to the Program Documents are similarly entering into the
transactions contemplated by the other Program Documents in reliance on TRI's
identity as a separate legal entity from such Seller and each such other
Affiliate.
(p) Such Seller is not an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended, or (ii) a
"holding company", or a "subsidiary company" or an "affiliate" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
(q) None of the inventory, the sale of which has given or may hereafter
give rise to a Receivable acquired by Xxxxxx from such Seller, is subject to any
Lien (other than Permitted Liens).
(r) As of the Effective Date, such Seller is not in default under any
material indenture, loan or credit agreement with respect to Indebtedness, the
effect of which is to cause, or to permit (or would, with the giving of notice
or the lapse of time or both, permit) the holder or holders of such Indebtedness
to cause, such Indebtedness to become due prior to its stated maturity.
(s) Such Seller currently maintains, and shall continue to maintain, such
liability and casualty insurance as may be required by law and as is necessary
for the continued operation
-14-
209
of its businesses as is customarily maintained by companies engaged in similar
businesses.
SECTION 3.02. Representations and Warranties of Xxxxxx. Xxxxxx represents
and warrants that as of the Effective Date and (except for representations and
warranties which relate to a specific date only) as of the date of each
Purchase:
(a) Xxxxxx is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is duly qualified to do
business, and is in good standing, in every jurisdiction where its ownership of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified and to be in good standing could not
reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by Xxxxxx of this Agreement,
the other Program Documents to which it is a party and all other agreements,
instruments and documents delivered by Xxxxxx hereunder and thereunder, and the
transactions contemplated hereby and thereby, are within Victor's corporate
powers, and have been duly authorized by all necessary corporate action, and do
not and will not (i) result in or require the creation of any Lien upon or with
respect to any of its properties except as created in favor of TRI, the Trustee
or the Investors or (ii) violate, conflict with or result in a breach or default
under any of the following (which, in the case of clauses (B) and (C) below,
would reasonably be expected to cause a Material Adverse Effect: (A) Victor's
certificate of incorporation or bylaws; (B) any law, rule or regulation
applicable to Xxxxxx or its property; (C) any contractual restriction contained
in any indenture, loan or credit agreement, lease, mortgage, security agreement,
bond, note, or other agreement or instrument binding on Xxxxxx or to which its
property is subject; or (D) any order, writ, judgment, award, injunction or
decree binding on Xxxxxx or to which its property is subject. This Agreement has
been duly executed and delivered on behalf of Xxxxxx.
(c) No authorization or approval or other action by, and no notice to or
filing with, any government authority or regulatory body or other Person is
required for the due execution, delivery
-15-
210
and performance by Xxxxxx of this Agreement, any other Program Document to which
it is a party or any other agreement, document or instrument delivered hereunder
or thereunder except for the filing of UCC financing statements to evidence
Victor's ownership interests in the Receivables purchased hereunder and all
proceeds thereof.
(d) This Agreement and each of the other Program Documents to which Xxxxxx
is a party constitutes the legal, valid and binding obligation of Xxxxxx
enforceable against Xxxxxx in accordance with its terms, except as such
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 including principles of commercial reasonableness,
good faith and fair dealing, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
ARTICLE IV
GENERAL COVENANTS OF SELLERS
SECTION 4.01. Affirmative Covenants of Sellers. From the date hereof until
the Collection Date, each Seller will, unless Xxxxxx shall otherwise consent in
writing:
(a) Compliance with Laws, Etc. Comply in all respects with all applicable
laws, rules, regulations and orders with respect to it, its business and
properties and all of its Receivables and related Contracts included in the
Acquired Assets, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
(b) Preservation of Corporate Existence. Preserve and maintain its
existence, rights, franchises and privileges in the jurisdiction of its
organization, and qualify and remain qualified in good standing as a foreign
entity in each jurisdiction where its ownership of property or the conduct of
its business requires such qualification, except where the failure to preserve
and maintain such existence, rights, franchises, privileges and qualification
could not reasonably be expected to have a Material Adverse Effect; provided,
that
-16-
211
nothing in this Section 4.01(b) shall be deemed to prohibit such Seller from
merging with or consolidating with or into, or from disposing of assets (other
than the Acquired Assets) to and from Xxxxxx or any Seller; provided, further,
that any survivor of any such merger or consolidation of such Seller must assume
in writing the obligations of such Seller under the Program Documents.
(c) Performance and Compliance with Receivables and Contracts. At its
expense, timely and fully perform and comply with all provisions, covenants and
other promises required to be observed by it under the Contracts related to the
Receivables of such Seller included in the Acquired Assets, except where the
failure to so perform and comply could not reasonably be expected to have a
Material Adverse Effect.
(d) Location of Records. Keep its principal place of business and chief
executive office at the address of such Seller listed in Section 7.02, and the
offices where it keeps its Records, at the addresses of such Seller referred to
in Schedule 3.01(h) or, upon thirty (30) days' prior written notice to Xxxxxx,
TRI and the Trustee, at such other locations within the United States where all
action required by Section 5.04 shall have been taken and completed.
(e) Credit and Collection Policy. Comply in all material respects with the
Credit and Collection Policy attached hereto as Exhibit B (as such Credit and
Collection Policy may be amended in accordance with Section 4.03(c)) applicable
to the Receivables of such Seller and the related Contracts included in the
Acquired Assets.
(f) Collections. Instruct all Obligors to cause all Collections relating to
Receivables of such Seller included in Acquired Assets to be deposited directly
to a Lockbox Account. If such Seller or any of its agents, representatives or
Subsidiaries shall receive any Collections, such recipient will comply with the
terms and provisions of Section 5.01(a) hereof.
(g) Audits. At any time and from time to time, following five (5)Business
Days notice from Xxxxxx, and during regular business hours, permit Xxxxxx, or
its agents or representatives or permitted assignees, (i) to have access to the
offices,
-17-
212
properties and computer software of such Seller for purposes of accessing all
Records transferred hereunder and to otherwise examine and make copies of and
abstracts from all such Records and (ii) to discuss matters relating to the
Acquired Assets or performance by such Seller under the Program Documents with
any of the officers or employees of such Seller or any of its agents,
representatives or Subsidiaries having knowledge of such matters, and (iii) to
verify the validity, amount or any other matter relating to any Receivable.
Such Seller further agrees that Xxxxxx or its assigns shall be entitled to
have certified public accountants or other auditors conduct a review of their
Records relating to the Acquired Assets in connection with any outside review of
such Acquired Assets as contemplated under Section 6.02 of the RPA (and subject
to the limits on the frequency of such reviews set forth therein); provided,
however, that unless a Liquidation Event has occurred and is continuing, the
scope of such review shall be reasonable, taking into account market practice
for similar transactions. Such Seller agrees that the Trustee shall be permitted
to substitute for and/or accompany Xxxxxx on any such inspection or visit and to
participate in any such discussion. Such Seller further agrees to instruct its
independent accountants to cooperate with any reasonable request of Xxxxxx and
the Trustee or their respective agents or representatives, in connection with
the performance of such accountants' routine verification procedures with
respect to the Receivables or the Related Security. Without limiting the
foregoing, Sellers shall, in connection with any review of Victor's Records by
certified public accountants or other auditors pursuant to Section 6.02 of the
RPA, permit such accountants or auditors to examine the Records of such Seller
relating to the Acquired Assets and the Program Documents.
(h) Delivery of Records. Upon the request of Xxxxxx, its agents,
representatives or successors and assigns (including the Trustee and the
Investors) deliver or cause to be delivered, as frequently as may be reasonably
requested, copies of all Records, including computer tapes generated by or on
behalf of Sellers or any Affiliate of Sellers, relating to the Acquired Assets
(including all Receivables and Collections included therein).
-18-
213
(i) Segregation of Collections. Use all reasonable efforts to minimize the
deposit of any funds other than Collections into any of the Lockbox Accounts
and, to the extent that any such funds are nevertheless deposited into any of
such Lockbox Accounts, promptly identify any such funds to Xxxxxx and the
Trustee.
(j) Books and Records. Maintain at all times complete Records and accounts
relating to the Acquired Assets acquired by Xxxxxx from such Seller (including
all Receivables and Collections included therein) in which timely entries are
made in accordance with GAAP. Such Records shall be marked to indicate the sales
of all such Receivables and Related Security hereunder and shall include,
without limitation, (a) all payments received and all credits and extensions
granted with respect to such Receivables; (b) the return, rejection,
repossessions, or stoppage in transit of any merchandise the sale of which has
given rise to a Receivable; and (c) any other Dilution Factors.
(k) Identification of Eligible Receivables. (i) Establish and maintain
procedures as are necessary for determining whether each Receivable of such
Seller included in Acquired Assets qualifies as an Eligible Receivable and for
identifying, on any date, the aggregate Outstanding Balances of all Eligible
Receivables of such Seller; and (ii) notify Xxxxxx and the Servicer in advance
of Purchase in the Daily Report for such day if a Receivable to be sold
hereunder will, to such Seller's knowledge, not be an Eligible Receivable as of
the date of Purchase.
(1) Notification of Noncomplying Receivables. Promptly notify Xxxxxx and
the Servicer of such Seller's determination that any Receivables previously sold
by such Seller hereunder were Noncomplying Receivables.
(m) Separate Identity. Take all actions required to maintain TRI's status
as a separate legal entity, including, without limitation, (i) not holding TRI
out to third parties as other than an entity with assets and liabilities
distinct from Xxxxxx, Sellers and their Affiliates; (ii) not holding itself out
to be responsible for the debts of TRI or for any decisions or actions relating
to the business and affairs of TRI; (iii) taking such other actions as are
reasonably necessary on its part so
-19-
214
that TRI's corporate procedures required by its certificate of incorporation and
bylaws are duly and validly taken; and (iv) taking such other actions as may be
reasonably necessary on its part so that TRI is in compliance at all times with
Section 5.01(1) and Section 6.09 of the RPA.
(n) Taxes. File or cause to be filed, and cause each Person with whom it
shares consolidated tax liability to file, all Federal, state and local tax
returns which are required to be filed by it, except where the failure to file
state and local returns could not reasonably be expected to have a Material
Adverse Effect, and pay or cause to be paid all taxes shown to be due and
payable on such returns or on any assessments received by it, other than any
taxes or assessments, the validity of which are being contested in good faith by
appropriate proceedings and with respect to which such Seller or such Person
shall have set aside adequate reserves on its books in accordance with GAAP and
which proceedings could not reasonably be expected to have a Material Adverse
Effect.
(o) Compliance With Opinion Assumptions. Take all other actions reasonably
necessary on its part to maintain the accuracy of all factual assumptions
relating to such Seller set forth in the legal opinions described in Section
4.01(xi) of the RPA.
(p) Consistent actions. Take no action that is inconsistent with Victor's
ownership interest in any Acquired Assets following the sale thereof.
SECTION 4.02. General Reporting Requirements of Sellers. From the date
hereof until the Collection Date, Sellers shall, unless Xxxxxx shall otherwise
consent in writing, furnish to Xxxxxx:
(a) As soon as practicable and in no event later than two (2) Business Days
after the occurrence of each Liquidation Event or Unmatured Liquidation Event, a
statement of a senior financial or accounting officer of such Seller setting
forth such Liquidation Event or Unmatured Liquidation Event and the action which
such Seller proposes to take with respect thereto;
(b) Promptly, from time to time, such other information, documents, Records
or reports respecting the Acquired Assets or
-20-
215
the conditions or operations, financial or otherwise, of Sellers as Xxxxxx, TRI
the Trustee, or any of their respective agents, representatives or permitted
assignees, may from time to time reasonably request, in order to protect the
interests of Xxxxxx, TRI and its assigns under or as contemplated by this
Agreement and the other Program Documents and to enable Xxxxxx and the Trustee
to perform their respective obligations under the other Program Documents.
SECTION 4.03. Negative Covenants of Sellers. From the date hereof until the
Collection Date, no Seller will, without the written consent of Xxxxxx:
(a) Sales, Liens, Etc. Against Receivables. Except as otherwise provided
herein, (1) sell, assign (by operation of law or otherwise) or otherwise dispose
of, or create or suffer to exist any Liens (except as created in favor of Xxxxxx
hereby or as created by Xxxxxx pursuant to any Program Document and except for
Permitted Liens) upon or with respect to any of the Acquired Assets or any
Lockbox Account; or (2) assign any right to receive income in respect of such
Acquired Assets or Lockbox Account. In the event that any Seller fails to keep
any Acquired Assets acquired by Xxxxxx from such Seller free and clear of any
Lien (except as created in favor of Xxxxxx hereunder or as created by Xxxxxx
pursuant to any other Program Document and except for Permitted Liens), Xxxxxx
may (without limiting its other rights with respect to such Seller's breach of
its obligations hereunder) make reasonable expenditures necessary to release
such Lien. Xxxxxx shall be entitled to indemnification for any such expenditures
pursuant to the indemnification provisions of Section 6.01, or Xxxxxx may,
alternatively, deduct such expenditures as an offset to the Purchase Price owed
to Sellers hereunder or as a reduction to such Seller's Purchase Price Note;
provided, however, that in the event of any dispute between any Seller and the
alleged holder of such Lien as to the amount or validity of such Lien, such
expenditure shall be made only after consultation with such Seller as to the
status of such Lien and the action such Seller or any of its Consolidated
Affiliates is taking or plans to take with respect thereto.
(b) Extension or Amendment of Receivables. Except for the adjustments made
in its capacity as an agent of the Servicer pursuant to Section 5.03(a), extend,
amend or otherwise modify
-21-
216
the terms of any Receivables included in the Acquired Assets without the prior
consent of Xxxxxx.
(c) Change in Credit and Collection Policy. (i) Make any change in the
Credit and Collection Policy which could reasonably be expected to impair the
collectibility of the Receivables or to result in a material delay in the
collection thereof, or (ii) amend or modify the terms of a Receivable in a way
that would materially impair the collectibility thereof or cause a Receivable
that would otherwise become ineligible to remain an Eligible Receivable.
(d) Change in Payment Instructions to Obligors. (i) Make any change in its
instructions to Obligors directing payments other than to a Lockbox Bank or the
Collection Account, or (ii) voluntarily add or terminate any bank as a Lockbox
Bank unless, with respect to the addition of a Lockbox Bank, TRI and the Trustee
shall have first approved such bank as Lockbox Bank (which approval shall not be
unreasonably withheld, conditioned or delayed) and shall have received (x)
copies of Lockbox Agreements executed by each new Lockbox Bank, TRI,
[Thermadyne] and the Trustee and (y) copies of all agreements and documents
signed by the Servicer, TRI and the Trustee or the respective Lockbox Bank with
respect to any new Lockbox Account.
(e) Change in Corporate Name. Make any change to its corporate name or
conduct any business under any trade names, fictitious names or assumed names
unless (i) Xxxxxx, TRI and the Trustee shall have received thirty (30) Business
Days prior written notice of such name change or use and (ii) at least ten (10)
Business Days prior to the effective date of any such name change or use, such
Seller shall have executed and delivered to Xxxxxx such financing statements
(Form UCC-1 and UCC-3) which Xxxxxx or the Trustee may request to reflect such
name change or use, together with such other documents and instruments that
Xxxxxx reasonably may request in connection therewith.
(f) Accounting of Purchases. Prepare any external financial statements
which shall account for the transactions contemplated hereby in any manner other
than the sale of the Acquired Assets by Sellers to Xxxxxx, or in any other
respect account for or treat the transactions contemplated hereby (including but
not limited to accounting and, where taxes are not
-22-
217
consolidated, for tax reporting purposes) in any manner other than as a sale of
the Acquired Assets by Sellers to Xxxxxx.
ARTICLE V
ADMINISTRATION AND COLLECTION
SECTION 5.01. Collection of Receivables. (a) As of the Effective Date,
Sellers shall have transferred to Xxxxxx the exclusive ownership and control of
the Lockbox Accounts, and Sellers hereby agree to take any further action
reasonably necessary or that Xxxxxx, TRI or the Trustee may reasonably request
to effect or maintain the effectiveness of any such transfer. From and after the
Effective Date, Sellers shall have no further right, title and/or interest in or
control over any of the Lockbox Accounts. Unless instructed otherwise by the
Trustee pursuant to its authority under the RPA, each Lockbox Bank shall be
instructed to remit, on a daily basis, via overnight or same day transfer, all
amounts deposited in its Lockbox Accounts to the Collection Account in
accordance with the terms of a Lockbox Agreement substantially in the form of
Exhibit 8.01 to the RPA. The Servicer shall advise Xxxxxx daily of the amount of
Collections received or to be received into the Collection Account on such day
with respect to the Receivables and Xxxxxx shall determine the amounts of such
Collections which, pursuant to the terms of the RPA, may be used by Xxxxxx to
purchase new Receivables hereunder. If Sellers or any of their agents or
representatives shall at any time receive any cash, checks or other instruments
which constitute Collections, such recipient shall segregate such payment and
hold such payment in trust for and in a manner acceptable to Xxxxxx and shall
promptly after any such identification of payments aggregating at least
$1,000.00 remit all such cash, checks and instruments, duly endorsed without
recourse or with duly executed instruments of transfer without recourse, to a
Lockbox Account or to the Collection Account. Xxxxxx may notify any or all of
the Obligors of the ownership of the Acquired Assets by Xxxxxx and may direct
any or all of the Obligors of Receivables included in the Acquired Assets to pay
all amounts payable under any such Receivables directly to Xxxxxx or its
designee (i) at any time, with contemporaneous notice to Sellers, after the
occurrence and during the continuance of a Liquidation Event or (ii) otherwise,
-23-
218
at any time following five (5) Business Days advance notice to Sellers. At
Victor's request and at Sellers' expense, Sellers shall give notice of Victor's
ownership of the Acquired Assets to each Obligor thereunder and direct that
payments be made directly to Xxxxxx or its designee and assemble all Records of
Sellers, and make the same available to Xxxxxx at a place selected by Xxxxxx or
its successors and assigns (including TRI, the Trustee and the Investors). Each
Seller hereby authorizes Xxxxxx, and gives Xxxxxx its irrevocable power of
attorney, which authorization shall be coupled with an interest, to take any and
all reasonable steps in such Seller's name and on behalf of such Seller, which
steps are reasonably necessary or desirable, in the reasonable determination of
Xxxxxx, to collect all amounts due under the Acquired Assets, including, without
limitation, endorsing such Seller's name on checks and other instruments
representing Collections and enforcing such Receivables and the related
Contracts.
(b) Xxxxxx shall, following notification that collections of any receivable
or other intangible owed to a Seller or an Affiliate thereof, which is not a
Acquired Asset, have been deposited into the Lockbox Accounts, segregate all
such collections. Promptly, after such misapplied collections have been
reasonably identified to Xxxxxx, Xxxxxx shall turn over to such Seller or such
Affiliate, as applicable, all such collections less all reasonable and
appropriate out-of-pocket costs and expenses, if any, incurred by Xxxxxx in
collecting such receivables.
SECTION 5.02. Designation of the Servicer. The servicing, administering and
enforcement of collection of the Receivables shall be conducted by the Person
(the "Servicer") so designated from time to time in accordance with Section 5.02
of the Second Tier RPSA. To the extent that any duties of the Servicer are
delegated by the Servicer to a Seller in accordance with Article V of the Second
Tier RPSA (i) such Seller shall be bound by the provisions of Article V of the
Second Tier RPSA, and (ii) shall be liable to Xxxxxx and its assigns for failure
to perform such duties in accordance with the standards set forth in such
Article V.
SECTION 5.03. Responsibilities of Sellers. Anything herein to the contrary
notwithstanding:
-24-
219
(a) Each Seller shall (i) perform all of its obligations under the
Contracts related to the Receivables sold by it hereunder to the same extent as
if such Receivables had not been sold hereunder and the exercise by Xxxxxx of
its rights hereunder shall not relieve such Seller from such obligations and
(ii) pay when due any taxes relating to the origination and sale of the
Receivables of such Seller included in Acquired Assets.
(b) Xxxxxx and its assignees shall have no obligation or liability with
respect to any Receivable or related Contract, nor shall Xxxxxx or any such
assignee be obligated to perform any of the obligations of Sellers thereunder
and each Seller agrees to indemnify and hold harmless Xxxxxx and its assignees
against and from any and all liabilities arising from or related to any such
obligation or liability; provided (i) that the foregoing indemnification is not
intended to provide recourse for failures of an Obligor to make payment on a
Receivable due to Credit Reasons, and (ii) that nothing in this Section 5.03(b)
shall require any Seller to indemnify any Person for (A) damages, losses, claims
or liabilities resulting from such Person's gross negligence or willful
misconduct or actions of the Servicer (unless the Servicer is Xxxxxx or an
Affiliate of Xxxxxx), (B) for lost profits, consequential, special or punitive
damages or (C) any income taxes, franchise taxes or similar taxes. Any
Indemnified Amounts owed pursuant to this Section 5.03(b) shall be paid to the
Trustee within five (5) Business Days following the indemnified party's written
demand therefor, setting forth in reasonable detail the basis for such demand.
SECTION 5.04. Further Action Evidencing Purchases. (a) Each Seller agrees
that at any time and from time to time, at its expense, it will promptly execute
and deliver all further instruments and documents, and take all further
reasonable action that may be necessary to perfect, protect or more fully
evidence Victor's ownership of the Acquired Assets sold by Sellers hereunder, or
to enable Xxxxxx to exercise or enforce any of its rights hereunder. Without
limiting the generality of the foregoing, each Seller will (i) cause its master
computer files relating to the Receivables (by means of a general legend that
will automatically appear at or near the beginning of any computer generated
list or print-out of the Receivables or otherwise) to indicate that, unless
otherwise specifically identified on such list or print-out as a Receivable not
so sold,
-25-
220
all Receivables included in such list or print-out and Related Security have
been sold to Xxxxxx in accordance with this Agreement and (ii) execute and file
such UCC financing or continuation statements, or amendments thereto or
assignments thereof, and such other instruments and notices, as may be necessary
or appropriate or as Xxxxxx or any of its agents, representatives or permitted
assignees may reasonably request.
(b) In the event that any Seller, within five (5) Business Days after
notice from Xxxxxx, fails to deliver to Xxxxxx one (1) or more UCC financing or
continuation statements, and amendments thereto and assignments thereof, that
Xxxxxx or any of its agents, representatives or permitted assignees may
reasonably determine to be necessary to evidence or perfect Victor's ownership
of all or any of the Acquired Assets now existing or hereafter arising, then
such Seller hereby authorizes Xxxxxx to file any such statements without the
signature of such Seller where permitted by law. A carbon, photographic or other
reproduction of this Agreement or any financing statement covering the Acquired
Assets or any part thereof, shall be sufficient as a financing statement. If any
Seller fails to perform any of its agreements or obligations under this
Agreement, following expiration of any applicable notice and cure period, Xxxxxx
may (but shall not be required to) perform, or cause performance of, such
agreement or obligation, and the reasonable expenses of Xxxxxx incurred in
connection therewith shall be payable by Sellers upon Victor's written demand
therefor (which demand shall itemize such expenses in reasonable detail).
SECTION 5.05. Application of Collections. Any payment by an Obligor in
respect of any Indebtedness or other obligations owed by such Obligor to any
Seller or Xxxxxx shall, except as otherwise specified by such Obligor or
otherwise required by law, be applied as a Collection of any Receivable of such
Obligor purchased hereunder (in the order of the age by invoice date of such
Receivables, starting with the oldest such Receivable) to the extent of any
amounts then due and payable thereunder before being applied to (i) any
Receivable arising subsequent to the Termination Date which is not purchased
hereunder or (ii) any other Indebtedness of such Obligor to any Seller.
SECTION 5.06. No Recourse for Credit Problems. It is understood and agreed
that Sellers shall not be liable for failure of an Obligor to make a payment on
a Receivable due to Credit Reasons.
-26-
221
ARTICLE VI
INDEMNIFICATION
SECTION 6.01. Indemnities by Sellers. Without limiting any other rights
which Xxxxxx may have hereunder or under applicable law, but without
duplication, each Seller hereby agrees to indemnify Xxxxxx, TRI and their
permitted assignees from and against any and all damages, losses, claims,
liabilities and related costs and expenses, including reasonable attorneys fees
and disbursements awarded against or incurred by Xxxxxx or TRI or any of their
successors or assigns (including the Trustee and the Investors) relating to or
resulting from:
(i) reliance on any representation or warranty made by such Seller (or
any of its officers) under or in connection with the Program Documents or
in connection with the preparation of any Daily Report, any Settlement
Statement, or reliance on any other information or report delivered by such
Seller pursuant to the Program Documents, which shall have been false,
incomplete or incorrect for the purposes they were delivered in any
material respect when made;
(ii) the failure by such Seller to comply in all material respects
with (A) any term, provision or covenant contained in this Agreement, any
other Program Document to which it is a party or any agreement executed by
such Seller in connection with this Agreement, any other Program Document
or (B) with any applicable law, rule or regulation with respect to any
Receivable, the related Contract or the Related Security, or the
nonconformity of any Receivable, the related Contract or the Related
Security with any such applicable law, rule or regulation;
(iii) the failure to vest and maintain vested in Xxxxxx or to transfer
to Xxxxxx, legal and equitable title to and ownership of the Receivables
and other
-27-
222
Acquired Assets which are, or are purported to be, sold by such Seller
hereunder, free and clear of any Lien (other than Permitted Liens and Liens
created in favor of Xxxxxx hereunder and Liens created under the other Program
Documents), including all amounts expended by Xxxxxx pursuant to Section
4.03(a);
(iv) the failure to file, or any unreasonable delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable laws with respect to any Receivables
and other Acquired Assets which are, or are purported to be, sold by such
Seller, whether at the time of any sale or contribution or at any subsequent
time;
(v) the failure by such Seller to be duly qualified to do business, to be
in good standing or to have filed appropriate fictitious or assumed name
registration documents in any jurisdiction;
(vi) any dispute, claim, offset or defense of the Obligor (other than
discharge in bankruptcy or payment in full) to the payment of any Receivable
which is, or is purported to be, sold by such Seller to Xxxxxx (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 related to such Receivable;
(vii) any products liability claim or personal injury or property damage
suit or other similar or related claim or action of whatever sort arising out of
or in connection with the goods and/or merchandise or services that are the
subject of any Receivable or related Contract;
(viii) the failure of such Seller to pay when due (A) any taxes or charges
imposed on such Seller or (B) any sales taxes or other, in either case, charges
arising from the transfer of the Acquired Assets (other
-28-
223
than taxes on or measured by the net income of Xxxxxx or any of its permitted
assignees);
(ix) the failure of such Seller or any of its agents or
representatives to remit to Xxxxxx, Collections of Acquired Assets received
by such Seller or any such agent or representative; and
(x) indemnities owed by Xxxxxx to TRI under the Second Tier RPSA;
provided, however, that nothing in this Section 6.01(x) shall give Xxxxxx
recourse to Sellers with respect to any liability arising primarily out of
the gross negligence or willful misconduct of Xxxxxx, the Trustee or any
Investor, as determined by a court of competent jurisdiction.
It is expressly agreed and understood by the parties (i) that the foregoing
indemnification is not intended to provide recourse for failures of an Obligor
to make payment on a Receivable due to Credit Reasons and (ii) that nothing in
this Section 6.01 shall require any Seller to indemnify any Person (A) for
damages, losses, claims or liabilities resulting from such Person's gross
negligence or willful misconduct or, the action or omission of the Servicer
(unless the Servicer is Xxxxxx), (B) for lost profits, consequential, special or
punitive damages, or (C) income taxes, franchise taxes or similar taxes. Any
amounts, subject to the indemnification provisions of this Section 6.01 shall be
paid by Sellers to Xxxxxx within five (5) Business Days following Victor's
written demand therefor, setting forth in reasonable detail the basis for such
demand. Notwithstanding anything to the contrary in this Agreement, for purposes
of this Section 6.01, the representations, warranties and covenants contained in
this Agreement that are qualified by a materiality standard shall not be deemed
to be limited to failures to perform or comply or to events, circumstances,
conditions or changes that gave rise to a Material Adverse Effect.
-29-
224
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, Etc. No amendment to or waiver of any provision
of this Agreement nor consent to any departure by Sellers therefrom, shall in
any event be effective unless (i) the same shall be in writing and signed by
Sellers and Xxxxxx, and (ii) other than amendments or waivers for the purpose of
curing any ambiguity, correcting any provision hereof which may be inconsistent
with any other provision hereof, or adding any provision to make the provisions
hereof consistent, or as otherwise permitted under the RPA, such amendments or
waivers shall have been consented to by the Majority Investors as required under
the RPA and the Rating Agency Condition shall have been satisfied. Any such
waiver, consent or approval shall be effective only in the specific instance and
for the specific purpose for which given. No notice to or demand on Sellers in
any case shall entitle Sellers to any other or further notice or demand in the
same, similar or other circumstances.
SECTION 7.02. Notices, Etc. Any notice shall be conclusively deemed to have
been received by a party hereto and, subject to Section 7.04, to be effective
(i) if sent by first class mail, commercial delivery service or by personal
delivery, on the day on which delivered to such party at its address set forth
under its name on the signature pages hereof (or at such other address as such
party shall specify to the other parties hereto in writing); (ii) if sent by
telex, graphic scanning or other facsimile communications of the sending party,
when delivered by such equipment to the number set forth under its name on the
signature pages hereof or (iii) if sent by registered or certified mail, on the
day on which delivered to such party (or on which delivery is refused),
addressed to such party at the address set forth below or at such other address
as shall be designated by any party in a written notice to the other parties
hereto:
-30-
225
If to Xxxxxx, to:
Xxxxxx Equipment Company
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: 314/000-0000
Facsimile: 314/746-2387
Attention: Xxxxxxx X. Xxxx
Vice President
If to a Seller:
[Name of such Seller]
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: 314/000-0000
Facsimile: 314/746-2387
Attention: Xxxxxxx X. Xxxx
Vice President
SECTION 7.03. No Waiver; Remedies. No waiver by Xxxxxx of any breach or
default of or by Sellers (whether in its individual capacity or as the Servicer)
under this Agreement shall be deemed a waiver of any other previous breach or
default or any thereafter occurring. No failure on the part of Xxxxxx 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,
or any abandonment or discontinuation of steps to enforce such right, 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 7.04. Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of Sellers and Xxxxxx and their respective
successors and permitted assigns. Sellers may not assign any of their rights and
obligations hereunder or any interest herein or under the Seller Purchase Price
Notes or any other Program Documents without the prior written consent of
Xxxxxx. Sellers acknowledge that (i) Xxxxxx intends, pursuant to the Second Tier
RPSA, to sell to TRI
-31-
226
the Acquired Assets and its rights in this Agreement, (ii) TRI intends, pursuant
to the RPA, to cause to be issued Certificates which will evidence participation
Interests in the Xxxxxx Transferred Assets and TRI's rights under the Program
Documents and (iii) TRI intends, pursuant to the Security Agreement, to pledge
to the Trustee as collateral security all of its residual interests in the
Acquired Assets and in the Program Documents. Sellers consent to such sale and
such pledge. Sellers agree that, during the existence of a Liquidation Event or
a Servicer Termination Event, the Trustee (and any other permitted assignee of
Xxxxxx, TRI or of the Trustee) shall have the right, as the assignee of Xxxxxx
or TRI (or the assignee of such assignee) and subject to the terms of the
Program Documents, to enforce the Program Documents and to exercise directly all
of Victor's rights and remedies under the Program Documents (including any
requirement in the RPA that the Trustee be directed to take a particular action
by the Required Investors). Sellers also agree that (i) Sellers shall
simultaneously send to the Trustee a copy of all notices, financial statements
and certificates and supporting material, required to be given by Sellers to
Xxxxxx hereunder and (ii) upon its receipt of a notice of further assignment by
Xxxxxx or an assignee of Xxxxxx, Sellers shall send the assignee identified in
such notice a copy of all notices required to be given by Sellers to Xxxxxx
hereunder. Xxxxxx and Sellers hereby acknowledge and agree that the Trustee and
the Investors have each relied upon the terms and provisions set forth in this
Agreement in entering into the RPA. 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 the Collection Date; provided,
however, that the provisions of Article VI and Section 7.06 shall be continuing
and shall survive any termination of this Agreement.
SECTION 7.05. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF PERSONAL
SERVICE AND VENUE: WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE INTERPRETED,
AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT OTHERWISE
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF THE INTERESTS OF XXXXXX IN THE ACQUIRED ASSETS OR
REMEDIES HEREUNDER OR
-32-
227
THEREUNDER, IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK. EACH SELLER AND XXXXXX HEREBY AGREE TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK
(AND ANY COURTS HEARING APPEALS FROM SUCH STATE OR FEDERAL COURT) OVER ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE PROGRAM DOCUMENTS, AND
WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON THEM AND CONSENT THAT ALL
SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO SUCH PARTY AT THE
ADDRESS SET FORTH ON THE SIGNATURE PAGE HEREOF AND SERVICE SO MADE SHALL BE
DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN
THE U.S. MAIL, POSTAGE PREPAID. EACH SELLER AND XXXXXX HEREBY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION BASED ON FORUM NON CONVENIENS AND
ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED UNDER THE PROGRAM DOCUMENTS
WITHIN THE STATE OF NEW YORK AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY ANY COURT IN SUCH STATE. NOTHING IN
THIS SECTION 7.05 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF XXXXXX TO BRING ANY
ACTION OR PROCEEDING AGAINST SELLERS OR THEIR PROPERTY IN THE COURTS OF ANY
OTHER JURISDICTION TO THE EXTENT NECESSARY FOR REALIZING ON ITS INTEREST IN ANY
ACQUIRED ASSETS. EACH SELLER AND XXXXXX HEREBY EXPRESSLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER OR REMEDY UNDER OR IN
CONNECTION WITH THE PROGRAM DOCUMENTS, AND AGREE THAT ANY SUCH ACTION SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY. THE TERMS AND PROVISIONS OF THIS
SECTION CONSTITUTE A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THE
PROGRAM DOCUMENTS.
SECTION 7.06. Costs, Expenses and Taxes. In addition to the rights of
indemnification under Article VI hereof, Sellers, jointly and severally, agree
to pay on demand all reasonable costs and expenses of Xxxxxx in connection with
the sales of Receivables hereunder, the negotiation, preparation, execution and
delivery of the Program Documents and all amendments with respect to this
Agreement, including the reasonable fees and out-of-pocket expenses of counsel
for Xxxxxx with respect thereto and with respect to advising Xxxxxx as to its
rights and remedies under this Agreement, and all reasonable costs and expenses
(including reasonable counsel fees and expenses) in connection with the
enforcement of this Agreement and the other Program
-33-
228
Documents. In addition, Sellers will pay any and all stamp and similar taxes and
fees payable or determined to be payable in connection with the execution,
delivery, filing, recording or enforcement of this Agreement or the other
Program Documents, and hereby indemnifies and saves Xxxxxx harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees.
SECTION 7.07. References to Xxxxxx. References to "Xxxxxx" herein
(including, without limitation, references in the representations, covenants and
indemnity sections hereof) are understood to be references to Xxxxxx in its
individual capacity and in its capacity as the Servicer unless the context of
the particular reference is clearly intended to mean either Xxxxxx in its
individual capacity or as the Servicer.
SECTION 7.08. Execution in Counterparts; Severability. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed (such execution may be
evidenced by a faxed copy thereof followed by the original thereof) shall be
deemed to be an original and all of which when taken together shall constitute
one and the same agreement. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
SECTION 7.09. Termination Date. The agreement of Sellers to sell
Receivables hereunder and the agreement of Xxxxxx to purchase Receivables shall
in any event automatically terminate on the Termination Date. All Sellers (but
not a Seller individually) shall have the right, by giving notice to Xxxxxx and
to the Trustee as described in clause (vii) of the definition of Liquidation
Period in Annex I hereto, to cause the Termination Date to occur on the date so
designated in such notice. Upon the occurrence and during the continuance of any
Liquidation Event, Xxxxxx shall have the right, by giving notice to Sellers and
to the Trustee, to cause the Termination Date to occur on the date so designated
in such notice, provided that Xxxxxx shall exercise such right in accordance
with the instructions of the Trustee
-34-
229
prior to the Collection Date. Notwithstanding any such termination described
above, all other provisions of this Agreement shall remain in full force and
effect as provided in Section 7.04. On or after the Collection Date, Xxxxxx
will, at the request and expense of Sellers, execute and deliver to Sellers such
UCC termination statements and other documents as Sellers may reasonably request
to evidence such termination.
SECTION 7.10. No Recourse. The obligations of each party hereunder shall be
solely its obligations and shall in all respects be non-recourse to all of its
officers, directors, controlling persons or stockholders, and each party hereto
acknowledges the same with respect to the other parties and, to the fullest
extent permitted by law, waives any such recourse and any claim against any of
such parties of the other arising hereunder.
SECTION 7.11. No Proceedings. Each Seller hereby agrees on behalf of itself
and any holder of its Seller Purchase Price Note, that it will not institute
against Xxxxxx any involuntary proceeding of the type referred to in the
definition of "Insolvency Event" in Annex I hereto so long as this Agreement
remains in full force and effect and for at least one (1) year and one (1) day
following the Collection Date.
SECTION 7.12. Entire Agreement. This Agreement, together with the other
Program Documents, including the annexes, exhibits and schedules hereto and
thereto, 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 entire agreement among the parties hereto with respect to the
subject matter hereof, superseding all previous oral statements and other
writings with respect thereto.
SECTION 7.13. Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the certificates delivered
pursuant hereto shall survive the Effective Date and each Purchase thereafter
and shall continue in full force and effect until the Collection Date.
[The Remainder of this Page Is Intentionally Left Blank]
-35-
230
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.
PURCHASER
XXXXXX EQUIPMENT COMPANY
By: /s/ XXXXXXX X. XXXX
-------------------------------------
Name: XXXXXXX X. XXXX
Title: VICE PRESIDENT, TREASURER AND
ASSISTANT SECRETARY
SELLERS
C&G SYSTEMS, INC.
By: /s/ XXXXXXX X. XXXX
-------------------------------------
Name: XXXXXXX X. XXXX
Title: VICE PRESIDENT, TREASURER AND
ASSISTANT SECRETARY
STOODY COMPANY
By: /s/ XXXXXXX X. XXXX
-------------------------------------
Name: XXXXXXX X. XXXX
Title: VICE PRESIDENT, TREASURER AND
ASSISTANT SECRETARY
THERMAL ARC, INC.
By: /s/ XXXXXXX X. XXXX
-------------------------------------
Name: XXXXXXX X. XXXX
Title: VICE PRESIDENT, TREASURER AND
ASSISTANT SECRETARY
S-1
231
THERMAL DYNAMICS CORPORATION
By: /s/ XXXXXXX X. XXXX
-------------------------------------
Name:
Title:
THERMADYNE INTERNATIONAL CORP.
By: /s/ XXXXXXX X. XXXX
-------------------------------------
Name:
Title:
TWECO PRODUCTS, INC.
By: /s/ XXXXXXX X. XXXX
-------------------------------------
NAME: XXXXXXX X. XXXX
TITLE: VICE PRESIDENT, TREASURER AND
ASSISTANT SECRETARY
XXXXXX GAS SYSTEMS, INC.
By: /s/ XXXXXXX X. XXXX
-------------------------------------
NAME: XXXXXXX X. XXXX
TITLE: VICE PRESIDENT, TREASURER AND
ASSISTANT SECRETARY
S-2
232
Annex I--
Defined Terms
SEE TAB 1, ANNEX I
233
Schedule 3.01(h)--
Location of Records
and Computer Software
SEE TAB 6, SCHEDULE 3.01(h)
234
Schedule 3.01(i)--
List of Lockbox
Banks
SEE TAB 6, SCHEDULE 3.01(i)
235
Schedule 3.01(j)
Names under which
Sellers have Conducted Business
236
SCHEDULE 3.01(j)
TO
RECEIVABLES PURCHASE AND SALE AGREEMENT
AMONG CERTAIN ENTITIES AND XXXXXX EQUIPMENT COMPANY
TRADENAMES, FICTITIOUS NAMES, ASSUMED NAMES
Xxxxxx Equipment Company
Assumed Name:
Wingaersheek Division
Xxxxxx Gas Systems. Inc.
Assumed Name:
Woodland Cryogenics Company
Mid-America Cryogenics Company
237
Schedule 3.01(l)--
List of Computer
Programs
SEE TAB 6, SCHEDULE 3.01(l)
238
EXHIBIT A
FORM OF SELLER PURCHASE PRICE NOTE
239
Exhibit A
Form of Seller
Purchase Price Note
FORM OF
SELLER PURCHASE PRICE NOTE
___________, 2000
FOR VALUE RECEIVED, the undersigned, [NAME OF PURCHASER], a [STATE OF
INCORPORATION] corporation ("[NAME]"), promises to pay to [NAME OF SELLER], a
[STATE OF INCORPORATION] corporation ("[NAME]" and together with its successors
and assigns, the "Holder"), on the terms and subject to the conditions set forth
in this promissory note (this "Note") and in that certain Receivables Purchase
and Sale Agreement of even date herewith (the "RPSA") among [NAME OF PURCHASER],
[NAME OF SELLER] and certain other subsidiaries of Thermadyne Mfg. LLC, an
amount equal to the aggregate unpaid principal amount of all borrowings deemed
to be made by [NAME OF PURCHASER] from [NAME OF SELLER] pursuant to Section
2.02(d) of the RPSA. Such amount, as shown in the records of the Servicer, will
be rebuttable presumptive evidence of the principal amount and interest owing
under this Note.
1. RPSA. This Note is a Seller Purchase Price Note described, and is
subject to the terms and conditions set forth, in the RPSA. Reference is hereby
made to the RPSA for a statement of certain other rights and obligations of
[NAME OF PURCHASER] and [NAME OF SELLER].
2. Rules of Construction; Definitions. Certain rules of construction
governing the interpretation of this Note are set forth in Annex I to the RPSA
and, except as otherwise specifically provided herein, capitalized terms used
but not defined herein have the meanings ascribed thereto in Annex I to the
RPSA. In addition, as used herein, the following terms have the following
meanings:
240
"Final Maturity Date" means the date occurring one year and one
day after the Scheduled Initial Principal Payment Date.
"Highest Lawful Rate" has the meaning set forth in paragraph 8
hereof.
"Reference Rate" means, with respect to any day occurring in a
Collection Period, the rate of interest publicly announced from time to
time by ABN AMRO Incorporated as its "prime rate" and in effect on the
first day of such Collection Period, as determined by the Servicer.
3. Interest. [NAME OF PURCHASER] promises to pay interest on the
aggregate unpaid principal amount of this Note outstanding on each day during a
Collection Period at an adjustable rate per annum equal to the LIBO Rate in
effect on the second Business Day in London prior to the commencement of such
Collection Period.
4. Interest Payment Dates.
(a) [NAME OF PURCHASER] shall pay accrued interest on this Note
on each Settlement Date and on the Final Maturity Date. [NAME OF
PURCHASER] also shall pay accrued interest on the principal amount of
each prepayment hereof on the date such prepayment is made.
(b) Notwithstanding the provisions of paragraph 4(a), in the
event that on the date an interest payment is due hereunder the amount
of funds available therefor is insufficient to pay any amount due
pursuant to paragraph 4(a), then interest shall be payable only to the
extent that funds are available therefor. All interest on this Note
that is not paid when due pursuant to this paragraph 4(b) shall be
automatically deferred, shall constitute a portion of the principal
balance of this Note and shall be payable on the next date on which an
interest payment on this Note is due and on which funds are available
therefor, and all
241
such unpaid interest shall accrue interest at the LIBO Rate until paid
in full.
5. Basis of Computation. Interest accrued hereunder shall be computed
for the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Any unpaid principal of this Note shall
only become due and payable on the Final Maturity Date. The principal amount of
and accrued interest on this Note may be prepaid on any Business Day without
premium or penalty; provided, that no prepayment shall be made by [NAME OF
PURCHASER] to the extent that such prepayment would result in a default in the
payment of any other amount required to be paid by [NAME OF PURCHASER] under any
Program Document.
7. General. No failure or delay on the part of the Holder in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Note shall in any event be effective unless (a) the same shall be in
writing and signed and delivered by [NAME OF PURCHASER] and [NAME OF SELLER],
and (b) all consents required for such actions under the Program Documents shall
have been received by the appropriate Persons.
8. Limitation on Interest. Notwithstanding anything in this Note to the
contrary, [NAME OF PURCHASER] shall never be required to pay unearned interest
on any amount outstanding hereunder, and shall never be required to pay interest
on the principal amount outstanding hereunder, at a rate in excess of the
maximum nonusurious interest rate that may be contracted for, charged or
received under applicable federal or state law (such maximum rate being herein
called the "Highest Lawful Rate"). If the effective rate of interest which
would otherwise be payable under this Note would exceed the Highest Lawful Rate,
or the Holder shall receive any unearned interest or shall receive
242
monies that are deemed to constitute interest which would increase the effective
rate of interest payable by [NAME OF PURCHASER] under this Note to a rate in
excess of the Highest Lawful Rate, then (a) the amount of interest which would
otherwise be payable by [NAME OF PURCHASER] under this Note shall be reduced to
the amount allowed by applicable law, and (b) any unearned interest paid by
[NAME OF PURCHASER] or any interest paid by [NAME OF PURCHASER] in excess of the
Highest Lawful Rate shall be refunded to [NAME OF PURCHASER]. Without limitation
of the foregoing, all calculations of the rate of interest contracted for,
charged or received by the Holder under this Note that are made for the purpose
of determining whether such rate exceeds the Highest Lawful Rate shall be made,
to the extent permitted by applicable usury laws (now or hereafter enacted), by
amortizing, prorating and spreading in equal parts during the actual period
during which any amount has been outstanding hereunder all interest at any time
contracted for, charged or received by [NAME OF PURCHASER] in connection
herewith. If at any time and from time to time (i) the amount of interest
payable to the Holder on any date shall be computed at the Highest Lawful Rate
pursuant to the provisions of the foregoing sentence, and (ii) in respect of any
subsequent interest computation period the amount of interest otherwise payable
to the Holder would be less than the amount of interest payable to the Holder
computed at the Highest Lawful Rate, then the amount of interest payable to the
Holder in respect of such subsequent interest computation period shall continue
to be computed at the Highest Lawful Rate until the total amount of interest
payable to the Holder shall equal the total amount of interest which would have
been payable to the Holder if the total amount of interest had been computed
without giving effect to the provisions of the foregoing sentence.
9. No Negotiation. Subject to Section 11, this Note is not negotiable.
10. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
243
11. Security Interest. [NAME OF SELLER] may grant a security interest
in or otherwise pledge this Note as security (and endorse this Note to the order
of such secured party or pledgee), and any Person to whom such security interest
is granted or to whom this Note is pledged shall be bound by, and for all
purposes takes this Note subject to, the restrictions and other provisions set
forth herein.
12. Captions. Paragraph captions used in this Note are provided solely
for convenience of reference and shall not affect the meaning or interpretation
of any provision of this Note.
244
IN WITNESS WHEREOF, [NAME OF PURCHASER] has caused this Note to be
signed and delivered by its duly authorized officer as of the date first above
written.
[NAME OF PURCHASER]
By:
---------------------------------------
Name:
Title:
245
EXHIBIT B
CREDIT AND COLLECTION POLICY
246
EXHIBIT B
CREDIT POLICIES AND PAYMENT TERMS
OVERVIEW
Thermadyne's credit and collection function is decentralized. Thermadyne relies
on each division to administer the established credit policies and collection
procedures. The policies depend on the careful establishment of appropriate
credit in compliance with documented policy and detailed monitoring of customer
account activity. Credit functions, including establishment of credit lines
maintenance of customer records and cash collection and application, are
controlled by the credit departments of each of the divisions.
Each credit department has a credit manager overseeing credit, collection and
cash application. The credit personnel monitor the orders placed on credit hold
as well as any delinquent accounts on a daily basis. Corrective action is taken
by credit personnel as potential problems are identified in order to minimize
losses while maintaining good working relationships with customers.
CREDIT DEPARTMENT PERSONNEL
Each division maintains a credit manager who, in conjunction with the division
controller, is responsible for implementing established credit policies,
evaluating the credit worthiness of accounts, determining credit action in
unusual circumstances and monitoring the financial status of key accounts.
Additionally, Thermadyne supports a strong working relationship among the
divisional credit managers to maintain consistency across divisions.
DETERMINATION OF CREDIT LIMITS
Each potential customer is required to complete a credit application. The
application requires basic information such as the potential customer's correct
name, length of time in business, principals, banking arrangements, trade
references and the amount of the requested credit line.
Credit lines are determined after an investigation of the customer's stability,
financial strength, credit reputation and expected purchases. A credit analysis
will typically include Dun & Bradstreet reports as well as supplier references,
bank references and any relevant financial statements.
Credit limit authority levels vary for each division, but conform to the
following established corporate financial policy:
$ 0 - X Credit Manager/Local Plant Controller
X - $100,000 Local V.P. Operations or Director of Operations
$100,001 - Y Executive V.P. Operations/Division President
Y - Up V.P.-C.F.O. and President
"X" to be determined by the Local V.P. Operations
"Y" to be determined by the President, but in no cases more than $250,000
247
POST-APPROVAL PROCEDURES
Credit personnel monitor delinquent accounts as well as daily orders for
accounts placed on credit hold. This procedure allows credit personnel to
manually review such accounts and, if necessary, follow up with the customer. In
general, credit personnel check the system several times each day for held
orders and make a decision on each such order within one day.
PAYMENT TERMS
Company policy for payment is generally net 30 days, however, other standard
terms exist, particularly in international markets. In cases where terms are
extended beyond standard terms to customers, the following approvals must be
obtained:
$ 0 - $ 50,000 Credit Manager/V.P. Operations/Director of Operations
$ 50,001 - $100,000 Executive V.P./Division President
$100,001 - Up V.P.-C.F.O./President
DELINQUENCIES AND COLLECTION POLICIES
Collection efforts are predicated on the financial worth of the obligor, terms
of sale, past payment history and the outstanding dollar amount. Contact is
first made by either telephone, fax or xxxxxxx letter, and occurs as early as
immediately upon shipment, but in no case later than 31 days past due. Follow-up
calls are made as well as correspondence by mail or fax should the account
remain delinquent. Sales people are also routinely notified of their respective
past due accounts for further follow up and in order to prepare them for
face-to-face situations with the customer. Delinquent accounts may be placed on
credit hold so that each subsequent order can be individually analyzed. When all
other means have been exhausted, accounts are forwarded to an outside collection
agency.
WRITE-OFF POLICIES
Accounts will be written off when credit and financial management make the
determination that all collection efforts have been exhausted. Policies require
that standard forms be filled out with respect to any write-off and, depending
upon the amounts of the write-off, forwarded to the Credit Manager, Controller,
VP General Operations Manager, or CFO for approval.
DISPUTES
Disputes with customers generally arise over quality problems, but can include
allowances, pricing errors, shipping errors, freight errors, invalid
substitutions, shortages and returns. Some customers choose to withhold payment
of invoices when problems arise; however most will deduct the disputed amount
from a payment.
Disputes are generally researched by credit personnel who work with customer
service and sales representatives to assess its legitimacy. If a dispute is
justified, a credit is issued and action is taken to correct the situation.
248
CREDIT FILE MAINTENANCE AND REVIEW
Credit files are established and maintained for each customer and are the
responsibility of the credit manager. The information accumulated within each
file will vary depending on the amount of the line of credit and the financial
strength of the obligor. Credit files are maintained on each customer and
routinely include the signed credit application, a Dun & Bradstreet Report and
references. Customer files are reviewed regularly as activity and balances
require.
249
EXHIBIT C
FORM OF ASSUMPTION AGREEMENT
250
EXHIBIT C
FORM OF ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT (this "Assumption Agreement") dated as of
_________ is made by ______________________, a ________ (the "Company").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in that certain Receivables Purchase and Sale
Agreement, dated as of _________, 1999 (as amended, restated, supplemented or
otherwise modified from time to time, the "RPSA"), among certain institutions
specified on the signature pages thereto, as sellers (the "Initial Sellers"),
and Xxxxxx Equipment Company ("Xxxxxx"), as Purchaser.
WITNESSETH:
WHEREAS, the Company is a Subsidiary of Thermadyne Mfg, LLC ("Thermadyne");
and
WHEREAS, the Company desires to become a Seller party to the RPSA in
accordance with the terms of Section 2.06 thereof;
NOW, THEREFORE, it is agreed that:
1. Receivables Purchase and Sale Agreement. By executing and delivering
this Assumption Agreement, the Company hereby agrees to become a party to the
RPSA as a "Seller" thereunder. In connection therewith, (i) the Company hereby
represents and warrants that, except as otherwise contemplated in Section
2.02(b) of the RPSA the representations and warranties made by the Initial
Sellers in the RPSA are true and correct with respect to the Company as of the
date of Victor's initial Purchase from the Company, and (ii) from and after the
date hereof, the Company hereby expressly assumes all of the obligations and
liabilities of, and agrees to be bound by all of the terms, covenants and
conditions with respect to, a "Seller" under the RPSA.
2. Effectiveness. This Assumption Agreement shall become effective, and the
Company shall become a "Seller" under the RPSA, upon the Company's execution and
delivery hereof to TRI, the Trustee and the Rating Agency and the satisfaction
of all of the conditions precedent set forth in Section 2.06 of the RPSA,
without any further action by any of the other parties to the RPSA. Upon such
effectiveness, in accordance with the terms of Section 2.06 of the RPSA, the
exhibits and schedules to the RPSAs
251
shall be deemed amended as set forth in the Annexes attached hereto and made a
part hereof.
3. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS AND DECISIONS OF THE STATE OF NEW YORK
(INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
NEW YORK) BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
4. Counterparts. This Assumption Agreement may be executed in any number of
counterparts and by difference 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.
(The Remainder of This Page Is
Intentionally Left Blank.]
252
IN WITNESS WHEREOF, the parties hereto have caused this Assumption
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
[NAME OF THE COMPANY]
By:
--------------------------------------
Name:
Title:
Address:
---------------------------------
Telephone:
--------------------------------
Facsimile:
-------------------------------
Acknowledged this ______
day of __________, 199__:
XXXXXX EQUIPMENT COMPANY, as Purchaser,
By:
------------------------------------
Name:
Title:
Address:
-------------------------------
Telephone:
-----------------------------
Facsimile:
-----------------------------
253
ANNEX I
TO
ASSUMPTION AGREEMENT
Amendments to [Schedule] [Exhibit] ___ of the RPSA
[Set forth the changes to each exhibit and schedule to the RPSA, to the
extent applicable, in a separate annex hereto. Also, indicate the applicable
Purchase Price for the period after the effectiveness of the Assumption
Agreement and the next succeeding Settlement Statement.]
254
TAB 5
255
SELLER PURCHASE PRICE NOTE
January 31, 2000
FOR VALUE RECEIVED, the undersigned, XXXXXX EQUIPMENT COMPANY, a Delaware
corporation ("Xxxxxx") , promises to pay to C & G Systems, Inc., an Illinois
corporation ("C & G" and together with its successors and assigns, the
"Holder"), on the terms and subject to the conditions set forth in this
promissory note (this "Note") and in that certain Receivables Purchase and Sale
Agreement of even date herewith (the "RPSA") among Xxxxxx, C & G and certain
other subsidiaries of Thermadyne Mfg. LLC, an amount equal to the aggregate
unpaid principal amount of all borrowings deemed to be made by Xxxxxx from C & G
pursuant to Section 2.02(d) of the RPSA. Such amount, as shown in the records of
the Servicer, will be rebuttable presumptive evidence of the principal amount
and interest owing under this Note.
1. RPSA. This Note is a Seller Purchase Price Note described, and is
subject to the terms and conditions set forth, in the RPSA. Reference is hereby
made to the RPSA for a statement of certain other rights and obligations of
Xxxxxx and C & G.
2. Rules of Construction; Definitions. Certain rules of construction
governing the interpretation of this Note are set forth in Annex I to the RPSA
and, except as otherwise specifically provided herein, capitalized terms used
but not defined herein have the meanings ascribed thereto in Annex I to the
RPSA. In addition, as used herein, the following terms have the following
meanings:
"Final Maturity Date" means the date occurring one year and one day
after the Scheduled Initial Principal Payment Date.
"Highest Lawful Rate" has the meaning set forth in paragraph 8 hereof.
"Reference Rate" means, with respect to any day occurring in a
Collection Period, the rate of interest publicly announced from time to
time by ABN AMRO Incorporated as its "prime rate" and in effect on the
first day of such Collection Period, as determined by the Servicer.
3. Interest. Xxxxxx promises to pay interest on the aggregate unpaid
principal amount of this Note outstanding on each day during a Collection Period
at an adjustable rate per
Seller Purchase Price Note
256
annum equal to the LIBO Rate in effect on the second Business Day in London
prior to the commencement of such Collection Period.
4. Interest Payment Dates.
(a) Xxxxxx shall pay accrued interest on this Note on each Settlement
Date and on the Final Maturity Date. Xxxxxx also shall pay accrued interest
on the principal amount of each prepayment hereof on the date such
prepayment is made.
(b) Notwithstanding the provisions of paragraph 4(a), in the event
that on the date an interest payment is due hereunder the amount of funds
available therefor is insufficient to pay any amount due pursuant to
paragraph 4(a), then interest shall be payable only to the extent that
funds are available therefor. All interest on this Note that is not paid
when due pursuant to this paragraph 4(b) shall be automatically deferred,
shall constitute a portion of the principal balance of this Note and shall
be payable on the next date on which an interest payment on this Note is
due and on which funds are available therefor, and all such unpaid interest
shall accrue interest at the LIBO Rate until paid in full.
5. Basis of Computation. Interest accrued hereunder shall be computed for
the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Any unpaid principal of this Note shall only
become due and payable on the Final Maturity Date. The principal amount of and
accrued interest on this Note may be prepaid on any Business Day without premium
or penalty; provided, that no prepayment shall be made by Xxxxxx to the extent
that such prepayment would result in a default in the payment of any other
amount required to be paid by Xxxxxx under any Program Document.
7. General. No failure or delay on the part of the Holder in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No amendment,
modification or waiver of, or consent with respect to, any provision of this
Note shall in any event be effective unless (a) the same shall be in writing and
signed and delivered by Xxxxxx and C & G, and (b) all consents required for such
actions under the Program Documents shall have been received by the appropriate
Persons.
8. Limitation on Interest. Notwithstanding anything in this Note to the
contrary, Xxxxxx shall never be required to pay
-2- Seller Purchase Price Note
257
unearned interest on any amount outstanding hereunder, and shall never be
required to pay interest on the principal amount outstanding hereunder, at a
rate in excess of the maximum nonusurious interest rate that may be contracted
for, charged or received under applicable federal or state law (such maximum
rate being herein called the "Highest Lawful Rate") . If the effective rate of
interest which would otherwise be payable under this Note would exceed the
Highest Lawful Rate, or the Holder shall receive any unearned interest or shall
receive monies that are deemed to constitute interest which would increase the
effective rate of interest payable by Xxxxxx under this Note to a rate in excess
of the Highest Lawful Rate, then (a) the amount of interest which would
otherwise be payable by Xxxxxx under this Note shall be reduced to the amount
allowed by applicable law, and (b) any unearned interest paid by Xxxxxx or any
interest paid by Xxxxxx in excess of the Highest Lawful Rate shall be refunded
to Xxxxxx. Without limitation of the foregoing, all calculations of the rate of
interest contracted for, charged or received by the Holder under this Note that
are made for the purpose of determining whether such rate exceeds the Highest
Lawful Rate shall be made, to the extent permitted by applicable usury laws (now
or hereafter enacted), by amortizing, prorating and spreading in equal parts
during the actual period during which any amount has been outstanding hereunder
all interest at any time contracted for, charged or received by Xxxxxx in
connection herewith. If at any time and from time to time (i) the amount of
interest payable to the Holder on any date shall be computed at the Highest
Lawful Rate pursuant to the provisions of the foregoing sentence, and (ii) in
respect of any subsequent interest computation period the amount of interest
otherwise payable to the Holder would be less than the amount of interest
payable to the Holder computed at the Highest Lawful Rate, then the amount of
interest payable to the Holder in respect of such subsequent interest
computation period shall continue to be computed at the Highest Lawful Rate
until the total amount of interest payable to the Holder shall equal the total
amount of interest which would have been payable to the Holder if the total
amount of interest had been computed without giving effect to the provisions of
the foregoing sentence.
9. No Negotiation. Subject to Section 11, this Note is not negotiable.
10. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
11. Security Interest. C & G may grant a security interest in or otherwise
pledge this Note as security (and endorse this Note to the order of such
secured party or pledgee), and any Person to whom such security interest is
granted or to whom this
-3- Seller Purchase Price Note
258
Note is pledged shall be bound by, and for all purposes takes this Note subject
to, the restrictions and other provisions set forth herein.
12. Captions. Paragraph captions used in this Note are provided solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Note.
-4- Seller Purchase Price Note
259
IN WITNESS WHEREOF, Xxxxxx has caused this Note to be signed and delivered
by its duly authorized officer as of the date first above written.
XXXXXX EQUIPMENT COMPANY
By: /s/ XXXXXXX X. XXXX
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP
S-1 Seller Purchase Price Note
260
SELLER PURCHASE PRICE NOTE
January 31, 2000
FOR VALUE RECEIVED, the undersigned, XXXXXX EQUIPMENT COMPANY, a Delaware
corporation ("Xxxxxx") , promises to pay to Thermal Arc, Inc., a Delaware
corporation ("Thermal Arc" and together with its successors and assigns, the
"Holder"), on the terms and subject to the conditions set forth in this
promissory note (this "Note") and in that certain Receivables Purchase and Sale
Agreement of even date herewith (the "RPSA") among Xxxxxx, Thermal Arc and
certain other subsidiaries of Thermadyne Mfg. LLC, an amount equal to the
aggregate unpaid principal amount of all borrowings deemed to be made by Xxxxxx
from Thermal Arc pursuant to Section 2.02(d) of the RPSA. Such amount, as shown
in the records of the Servicer, will be rebuttable presumptive evidence of the
principal amount and interest owing under this Note.
1. RPSA. This Note is a Seller Purchase Price Note described, and is
subject to the terms and conditions set forth, in the RPSA. Reference is hereby
made to the RPSA for a statement of certain other rights and obligations of
Xxxxxx and Thermal Arc.
2. Rules of Construction; Definitions. Certain rules of construction
governing the interpretation of this Note are set forth in Annex I to the RPSA
and, except as otherwise specifically provided herein, capitalized terms used
but not defined herein have the meanings ascribed thereto in Annex I to the
RPSA. In addition, as used herein, the following terms have the following
meanings:
"Final Maturity Date" means the date occurring one year and one day
after the Scheduled Initial Principal Payment Date.
"Highest Lawful Rate" has the meaning set forth in paragraph 8 hereof.
"Reference Rate" means, with respect to any day occurring in a
Collection Period, the rate of interest publicly announced from time to
time by ABN AMRO Incorporated as its "prime rate" and in effect on the
first day of such Collection Period, as determined by the Servicer.
3. Interest. Xxxxxx promises to pay interest on the aggregate unpaid
principal amount of this Note outstanding on
Seller Purchase Price Note
261
each day during a Collection Period at an adjustable rate per annum equal to the
LIBO Rate in effect on the second Business Day in London prior to the
commencement of such Collection Period.
4. Interest Payment Dates.
(a) Xxxxxx shall pay accrued interest on this Note on each Settlement
Date and on the Final Maturity Date. Xxxxxx also shall pay accrued interest
on the principal amount of each prepayment hereof on the date such
prepayment is made.
(b) Notwithstanding the provisions of paragraph 4(a), in the event
that on the date an interest payment is due hereunder the amount of funds
available therefor is insufficient to pay any amount due pursuant to
paragraph 4(a), then interest shall be payable only to the extent that
funds are available therefor. All interest on this Note that is not paid
when due pursuant to this paragraph 4(b) shall be automatically deferred,
shall constitute a portion of the principal balance of this Note and shall
be payable on the next date on which an interest payment on this Note is
due and on which funds are available therefor, and all such unpaid interest
shall accrue interest at the LIBO Rate until paid in full.
5. Basis of Computation. Interest accrued hereunder shall be computed for
the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Any unpaid principal of this Note shall only
become due and payable on the Final Maturity Date. The principal amount of and
accrued interest on this Note may be prepaid on any Business Day without premium
or penalty; provided, that no prepayment shall be made by Xxxxxx to the extent
that such prepayment would result in a default in the payment of any other
amount required to be paid by Xxxxxx under any Program Document.
7. General. No failure or delay on the part of the Holder in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No amendment,
modification or waiver of, or consent with respect to, any provision of this
Note shall in any event be effective unless (a) the same shall be in writing and
signed and delivered by Xxxxxx and Thermal Arc, and (b) all consents required
for such actions under the Program Documents shall have been received by the
appropriate Persons.
-2- Seller Purchase Price Note
262
8. Limitation on Interest. Notwithstanding anything in this Note to the
contrary, Xxxxxx shall never be required to pay unearned interest on any amount
outstanding hereunder, and shall never be required to pay interest on the
principal amount outstanding hereunder, at a rate in excess of the maximum
nonusurious interest rate that may be contracted for, charged or received under
applicable federal or state law (such maximum rate being herein called the
"Highest Lawful Rate"). If the effective rate of interest which would otherwise
be payable under this Note would exceed the Highest Lawful Rate, or the Holder
shall receive any unearned interest or shall receive monies that are deemed to
constitute interest which would increase the effective rate of interest payable
by Xxxxxx under this Note to a rate in excess of the Highest Lawful Rate, then
(a) the amount of interest which would otherwise be payable by Xxxxxx under this
Note shall be reduced to the amount allowed by applicable law, and (b) any
unearned interest paid by Xxxxxx or any interest paid by Xxxxxx in excess of the
Highest Lawful Rate shall be refunded to Xxxxxx. Without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged or
received by the Holder under this Note that are made for the purpose of
determining whether such rate exceeds the Highest Lawful Rate shall be made, to
the extent permitted by applicable usury laws (now or hereafter enacted), by
amortizing, prorating and spreading in equal parts during the actual period
during which any amount has been outstanding hereunder all interest at any time
contracted for, charged or received by Xxxxxx in connection herewith. If at any
time and from time to time (i) the amount of interest payable to the Holder on
any date shall be computed at the Highest Lawful Rate pursuant to the provisions
of the foregoing sentence, and (ii) in respect of any subsequent interest
computation period the amount of interest otherwise payable to the Holder would
be less than the amount of interest payable to the Holder computed at the
Highest Lawful Rate, then the amount of interest payable to the Holder in
respect of such subsequent interest computation period shall continue to be
computed at the Highest Lawful Rate until the total amount of interest payable
to the Holder shall equal the total amount of interest which would have been
payable to the Holder if the total amount of interest had been computed without
giving effect to the provisions of the foregoing sentence.
9. No Negotiation. Subject to Section 11, this Note is not negotiable.
10. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
11. Security Interest. Thermal Arc may grant a security interest in or
otherwise pledge this Note as security (and
-3- Seller Purchase Price Note
263
endorse this Note to the order of such secured party or pledgee), and any Person
to whom such security interest is granted or to whom this Note is pledged shall
be bound by, and for all purposes takes this Note subject to, the restrictions
and other provisions set forth herein.
12. Captions. Paragraph captions used in this Note are provided solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Note.
-4- Seller Purchase Price Note
264
IN WITNESS WHEREOF, Xxxxxx has caused this Note to be signed and delivered
by its duly authorized officer as of the date first above written.
XXXXXX EQUIPMENT COMPANY
By: /s/ XXXXXXX X. XXXX
------------------------
Name: Xxxxxxx X. Xxxx
Title: VP
S-1 Seller Purchase Price Note
265
SELLER PURCHASE PRICE NOTE
January 31, 2000
FOR VALUE RECEIVED, the undersigned, XXXXXX EQUIPMENT COMPANY, a Delaware
corporation ("Xxxxxx"), promises to pay to Xxxxxx Gas Systems, Inc., a Delaware
corporation ("Gas Systems" and together with its successors and assigns, the
"Holder"), on the terms and subject to the conditions set forth in this
promissory note (this "Note") and in that certain Receivables Purchase and Sale
Agreement of even date herewith (the "RPSA") among Xxxxxx,Gas Systems and
certain other subsidiaries of Thermadyne Mfg. LLC, an amount equal to the
aggregate unpaid principal amount of all borrowings deemed to be made by Xxxxxx
from Gas Systems pursuant to Section 2.02(d) of the RPSA. Such amount, as shown
in the records of the Servicer, will be rebuttable presumptive evidence of the
principal amount and interest owing under this Note.
1. RPSA. This Note is a Seller Purchase Price Note described, and is
subject to the terms and conditions set forth, in the RPSA. Reference is hereby
made to the RPSA for a statement of certain other rights and obligations of
Xxxxxx and Gas Systems.
2. Rules of Construction; Definitions. Certain rules of construction
governing the interpretation of this Note are set forth in Annex I to the RPSA
and, except as otherwise specifically provided herein, capitalized terms used
but not defined herein have the meanings ascribed thereto in Annex I to the
RPSA. In addition, as used herein, the following terms have the following
meanings:
"Final Maturity Date" means the date occurring one year and one day
after the Scheduled Initial Principal Payment Date.
"Highest Lawful Rate" has the meaning set forth in paragraph 8 hereof.
"Reference Rate" means, with respect to any day occurring in a
Collection Period, the rate of interest publicly announced from time to
time by ABN AMRO Incorporated as its "prime rate" and in effect on the
first day of such Collection Period, as determined by the Servicer.
3. Interest. Xxxxxx promises to pay interest on the aggregate unpaid
principal amount of this Note outstanding on
Seller Purchase Price Note
266
each day during a Collection Period at an adjustable rate per annum equal to the
LIBO Rate in effect on the second Business Day in London prior to the
commencement of such Collection Period.
4. Interest Payment Dates.
(a) Xxxxxx shall pay accrued interest on this Note on each Settlement
Date and on the Final Maturity Date. Xxxxxx also shall pay accrued interest
on the principal amount of each prepayment hereof on the date such
prepayment is made.
(b) Notwithstanding the provisions of paragraph 4(a), in the event
that on the date an interest payment is due hereunder the amount of funds
available therefor is insufficient to pay any amount due pursuant to
paragraph 4(a), then interest shall be payable only to the extent that
funds are available therefor. All interest on this Note that is not paid
when due pursuant to this paragraph 4(b) shall be automatically deferred,
shall constitute a portion of the principal balance of this Note and shall
be payable on the next date on which an interest payment on this Note is
due and on which funds are available therefor, and all such unpaid interest
shall accrue interest at the LIBO Rate until paid in full.
5. Basis of Computation. Interest accrued hereunder shall be computed for
the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Any unpaid principal of this Note shall only
become due and payable on the Final Maturity Date. The principal amount of and
accrued interest on this Note may be prepaid on any Business Day without
premium or penalty; provided, that no prepayment shall be made by Xxxxxx to the
extent that such prepayment would result in a default in the payment of any
other amount required to be paid by Xxxxxx under any Program Document.
7. General. No failure or delay on the part of the Holder in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No amendment,
modification or waiver of, or consent with respect to, any provision of this
Note shall in any event be effective unless (a) the same shall be in writing and
signed and delivered by Xxxxxx and Gas Systems, and (b) all consents required
for such actions under the Program Documents shall have been received by the
appropriate Persons.
-2- Seller Purchase Price Note
267
8. Limitation on Interest Notwithstanding anything in this Note to the
contrary, Xxxxxx shall never be required to pay unearned interest on any amount
outstanding hereunder, and shall never be required to pay interest on the
principal amount outstanding hereunder, at a rate in excess of the maximum
nonusurious interest rate that may be contracted for, charged or received under
applicable federal or state law (such maximum rate being herein called the
"Highest Lawful Rate"). If the effective rate of interest which would otherwise
be payable under this Note would exceed the Highest Lawful Rate, or the Holder
shall receive any unearned interest or shall receive monies that are deemed to
constitute interest which would increase the effective rate of interest payable
by Xxxxxx under this Note to a rate in excess of the Highest Lawful Rate, then
(a) the amount of interest which would otherwise be payable by Xxxxxx under this
Note shall be reduced to the amount allowed by applicable law, and (b) any
unearned interest paid by Xxxxxx or any interest paid by Xxxxxx in excess of the
Highest Lawful Rate shall be refunded to Xxxxxx. Without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged or
received by the Holder under this Note that are made for the purpose of
determining whether such rate exceeds the Highest Lawful Rate shall be made, to
the extent permitted by applicable usury laws (now or hereafter enacted), by
amortizing, prorating and spreading in equal parts during the actual period
during which any amount has been outstanding hereunder all interest at any time
contracted for, charged or received by Xxxxxx in connection herewith. If at any
time and from time to time (i) the amount of interest payable to the Holder on
any date shall be computed at the Highest Lawful Rate pursuant to the provisions
of the foregoing sentence, and (ii) in respect of any subsequent interest
computation period the amount of interest otherwise payable to the Holder would
be less than the amount of interest payable to the Holder computed at the
Highest Lawful Rate, then the amount of interest payable to the Holder in
respect of such subsequent interest computation period shall continue to be
computed at the Highest Lawful Rate until the total amount of interest payable
to the Holder shall equal the total amount of interest which would have been
payable to the Holder if the total amount of interest had been computed without
giving effect to the provisions of the foregoing sentence.
9. No Negotiation. Subject to Section 11, this Note is not negotiable.
10. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
11. Security Interest. Gas Systems may grant a security interest in or
otherwise pledge this Note as security (and
-3- Seller Purchase Price Note
268
endorse this Note to the order of such secured party or pledgee), and any Person
to whom such security interest is granted or to whom this Note is pledged shall
be bound by, and for all purposes takes this Note subject to, the restrictions
and other provisions set forth herein.
12. Captions. Paragraph captions used in this Note are provided solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Note.
-4- Seller Purchase Price Note
269
IN WITNESS WHEREOF, Xxxxxx has caused this Note to be signed and delivered
by its duly authorized officer as of the date first above written.
XXXXXX EQUIPMENT COMPANY
By: /s/ XXXXXXX X. XXXX
------------------------
Name: Xxxxxxx X. Xxxx
Title: VP
S-1 Seller Purchase Price Note
270
SELLER PURCHASE PRICE NOTE
January 31, 2000
FOR VALUE RECEIVED, the undersigned, XXXXXX EQUIPMENT COMPANY, a
Delaware corporation ("Xxxxxx"), promises to pay to Thermadyne International
Corp., a Delaware corporation ("Thermadyne International" and together with its
successors and assigns, the "Holder"), on the terms and subject to the
conditions set forth in this promissory note (this "Note") and in that certain
Receivables Purchase and Sale Agreement of even date herewith (the "RPSA") among
Xxxxxx, Thermadyne International and certain other subsidiaries of Thermadyne
Mfg. LLC, an amount equal to the aggregate unpaid principal amount of all
borrowings deemed to be made by Xxxxxx from Thermadyne International pursuant
to Section 2.02(d) of the RPSA. Such amount, as shown in the records of the
Servicer, will be rebuttable presumptive evidence of the principal amount and
interest owing under this Note.
1. RPSA. This Note is a Seller Purchase Price Note described, and is
subject to the terms and conditions set forth, in the RPSA. Reference is hereby
made to the RPSA for a statement of certain other rights and obligations of
Xxxxxx and Thermadyne International.
2. Rules of Construction; Definitions. Certain rules of construction
governing the interpretation of this Note are set forth in Annex I to the RPSA
and, except as otherwise specifically provided herein, capitalized terms used
but not defined herein have the meanings ascribed thereto in Annex I to the
RPSA. In addition, as used herein, the following terms have the following
meanings:
"Final Maturity Date" means the date occurring one year and one
day after the Scheduled Initial Principal Payment Date.
"Highest Lawful Rate" has the meaning set forth in paragraph 8
hereof.
"Reference Rate" means, with respect to any day occurring in a
Collection Period, the rate of interest publicly announced from time to
time by ABN AMRO Incorporated as its "prime rate" and in effect on the
first day of such Collection Period, as determined by the Servicer.
Seller Purchase Price Note
271
3. Interest. Xxxxxx promises to pay interest on the aggregate unpaid
principal amount of this Note outstanding on each day during a Collection Period
at an adjustable rate per annum equal to the LIBO Rate in effect on the second
Business Day in London prior to the commencement of such Collection Period.
4. Interest Payment Dates.
(a) Xxxxxx shall pay accrued interest on this Note on each
Settlement Date and on the Final Maturity Date. Xxxxxx also shall pay
accrued interest on the principal amount of each prepayment hereof on
the date such prepayment is made.
(b) Notwithstanding the provisions of paragraph 4(a), in the
event that on the date an interest payment is due hereunder the amount
of funds available therefor is insufficient to pay any amount due
pursuant to paragraph 4(a), then interest shall be payable only to the
extent that funds are available therefor. All interest on this Note
that is not paid when due pursuant to this paragraph 4(b) shall be
automatically deferred, shall constitute a portion of the principal
balance of this Note and shall be payable on the next date on which an
interest payment on this Note is due and on which funds are available
therefor, and all such unpaid interest shall accrue interest at the
LIBO Rate until paid in full.
5. Basis of Computation. Interest accrued hereunder shall be computed
for the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Any unpaid principal of this Note shall
only become due and payable on the Final Maturity Date. The principal amount of
and accrued interest on this Note may be prepaid on any Business Day without
premium or penalty; provided, that no prepayment shall be made by Xxxxxx to the
extent that such prepayment would result in a default in the payment of any
other amount required to be paid by Xxxxxx under any Program Document.
7. General. No failure or delay on the part of the Holder in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Note shall in any event be effective unless (a) the same shall be in
writing and signed and delivered by Xxxxxx and Thermadyne International, and (b)
all consents required for such actions under the Program Documents shall have
been received by the appropriate Persons.
-2- Seller Purchase Price Note
272
8. Limitation on Interest. Notwithstanding anything in this Note to the
contrary, Xxxxxx shall never be required to pay unearned interest on any amount
outstanding hereunder, and shall never be required to pay interest on the
principal amount outstanding hereunder, at a rate in excess of the maximum
nonusurious interest rate that may be contracted for, charged or received under
applicable federal or state law (such maximum rate being herein called the
"Highest Lawful Rate"). If the effective rate of interest which would otherwise
be payable under this Note would exceed the Highest Lawful Rate, or the Holder
shall receive any unearned interest or shall receive monies that are deemed to
constitute interest which would increase the effective rate of interest payable
by Xxxxxx under this Note to a rate in excess of the Highest Lawful Rate, then
(a) the amount of interest which would otherwise be payable by Xxxxxx under this
Note shall be reduced to the amount allowed by applicable law, and (b) any
unearned interest paid by Xxxxxx or any interest paid by Xxxxxx in excess of the
Highest Lawful Rate shall be refunded to Xxxxxx. Without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged or
received by the Holder under this Note that are made for the purpose of
determining whether such rate exceeds the Highest Lawful Rate shall be made, to
the extent permitted by applicable usury laws (now or hereafter enacted), by
amortizing, prorating and spreading in equal parts during the actual period
during which any amount has been outstanding hereunder all interest at any time
contracted for, charged or received by Xxxxxx in connection herewith. If at any
time and from time to time (i) the amount of interest payable to the Holder on
any date shall be computed at the Highest Lawful Rate pursuant to the provisions
of the foregoing sentence, and (ii) in respect of any subsequent interest
computation period the amount of interest otherwise payable to the Holder would
be less than the amount of interest payable to the Holder computed at the
Highest Lawful Rate, then the amount of interest payable to the Holder in
respect of such subsequent interest computation period shall continue to be
computed at the Highest Lawful Rate until the total amount of interest payable
to the Holder shall equal the total amount of interest which would have been
payable to the Holder if the total amount of interest had been computed without
giving effect to the provisions of the foregoing sentence.
9. No Negotiation. Subject to Section 11, this Note is not negotiable.
10. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
11. Security Interest. Thermadyne International may grant a security
interest in or otherwise pledge this Note as security
-3- Seller Purchase Price Note
273
(and endorse this Note to the order of such secured party or pledgee), and any
Person to whom such security interest is granted or to whom this Note is pledged
shall be bound by, and for all purposes takes this Note subject to, the
restrictions and other provisions set forth herein.
12. Captions. Paragraph captions used in this Note are provided solely
for convenience of reference and shall not affect the meaning or interpretation
of any provision of this Note.
-4- Seller Purchase Price Note
274
IN WITNESS WHEREOF, Xxxxxx has caused this Note to be signed and
delivered by its duly authorized officer as of the date first above written.
XXXXXX EQUIPMENT COMPANY
By: /s/ XXXXXXX X. XXXX
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP
S-1 Seller Purchase Price Note
275
SELLER PURCHASE PRICE NOTE
January 31, 2000
FOR VALUE RECEIVED, the undersigned, XXXXXX EQUIPMENT COMPANY, a
Delaware corporation ("Xxxxxx"), promises to pay to Stoody Company, a Delaware
corporation ("Stoody" and together with its successors and assigns, the
"Holder"), on the terms and subject to the conditions set forth in this
promissory note (this "Note") and in that certain Receivables Purchase and Sale
Agreement of even date herewith (the "RPSA") among Xxxxxx, Xxxxxx and certain
other subsidiaries of Thermadyne Mfg. LLC, an amount equal to the aggregate
unpaid principal amount of all borrowings deemed to be made by Xxxxxx from
Stoody pursuant to Section 2.02(d) of the RPSA. Such amount, as shown in the
records of the Servicer, will be rebuttable presumptive evidence of the
principal amount and interest owing under this Note.
1. RPSA. This Note is a Seller Purchase Price Note described, and is
subject to the terms and conditions set forth, in the RPSA. Reference is hereby
made to the RPSA for a statement of certain other rights and obligations of
Xxxxxx and Xxxxxx.
2. Rules of Construction; Definitions. Certain rules of construction
governing the interpretation of this Note are set forth in Annex I to the RPSA
and, except as otherwise specifically provided herein, capitalized terms used
but not defined herein have the meanings ascribed thereto in Annex I to the
RPSA. In addition, as used herein, the following terms have the following
meanings:
"Final Maturity Date" means the date occurring one year and one
day after the Scheduled Initial Principal Payment Date.
"Highest Lawful Rate" has the meaning set forth in paragraph 8
hereof.
"Reference Rate" means, with respect to any day occurring in a
Collection Period, the rate of interest publicly announced from time to
time by ABN AMRO Incorporated as its "prime rate" and in effect on the
first day of such Collection Period, as determined by the Servicer.
3. Interest. Xxxxxx promises to pay interest on the aggregate unpaid
principal amount of this Note outstanding on each day during a Collection Period
at an adjustable rate per
Seller Purchase Price Note
276
annum equal to the LIBO Rate in effect on the second Business Day in London
prior to the commencement of such Collection Period.
4. Interest Payment Dates.
(a) Xxxxxx shall pay accrued interest on this Note on each
Settlement Date and on the Final Maturity Date. Xxxxxx also shall pay
accrued interest on the principal amount of each prepayment hereof on
the date such prepayment is made.
(b) Notwithstanding the provisions of paragraph 4(a), in the
event that on the date an interest payment is due hereunder the amount
of funds available therefor is insufficient to pay any amount due
pursuant to paragraph 4(a), then interest shall be payable only to the
extent that funds are available therefor. All interest on this Note
that is not paid when due pursuant to this paragraph 4(b) shall be
automatically deferred, shall constitute a portion of the principal
balance of this Note and shall be payable on the next date on which an
interest payment on this Note is due and on which funds are available
therefor, and all such unpaid interest shall accrue interest at the
LIBO Rate until paid in full.
5. Basis of Computation. Interest accrued hereunder shall be computed
for the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Any unpaid principal of this Note shall
only become due and payable on the Final Maturity Date. The principal amount of
and accrued interest on this Note may be prepaid on any Business Day without
premium or penalty; provided, that no prepayment shall be made by Xxxxxx to the
extent that such prepayment would result in a default in the payment of any
other amount required to be paid by Xxxxxx under any Program Document.
7. General. No failure or delay on the part of the Holder in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Note shall in any event be effective unless (a) the same shall be in
writing and signed and delivered by Xxxxxx and Xxxxxx, and (b) all consents
required for such actions under the Program Documents shall have been received
by the appropriate Persons.
8. Limitation on Interest. Notwithstanding anything in this Note to the
contrary, Xxxxxx shall never be required to pay
-2- Seller Purchase Price Note
277
unearned interest on any amount outstanding hereunder, and shall never be
required to pay interest on the principal amount outstanding hereunder, at a
rate in excess of the maximum nonusurious interest rate that may be contracted
for, charged or received under applicable federal or state law (such maximum
rate being herein called the "Highest Lawful Rate"). If the effective rate of
interest which would otherwise be payable under this Note would exceed the
Highest Lawful Rate, or the Holder shall receive any unearned interest or shall
receive monies that are deemed to constitute interest which would increase the
effective rate of interest payable by Xxxxxx under this Note to a rate in excess
of the Highest Lawful Rate, then (a) the amount of interest which would
otherwise be payable by Xxxxxx under this Note shall be reduced to the amount
allowed by applicable law, and (b) any unearned interest paid by Xxxxxx or any
interest paid by Xxxxxx in excess of the Highest Lawful Rate shall be refunded
to Xxxxxx. Without limitation of the foregoing, all calculations of the rate of
interest contracted for, charged or received by the Holder under this Note that
are made for the purpose of determining whether such rate exceeds the Highest
Lawful Rate shall be made, to the extent permitted by applicable usury laws (now
or hereafter enacted), by amortizing, prorating and spreading in equal parts
during the actual period during which any amount has been outstanding hereunder
all interest at any time contracted for, charged or received by Xxxxxx in
connection herewith. If at any time and from time to time (i) the amount of
interest payable to the Holder on any date shall be computed at the Highest
Lawful Rate pursuant to the provisions of the foregoing sentence, and (ii) in
respect of any subsequent interest computation period the amount of interest
otherwise payable to the Holder would be less than the amount of interest
payable to the Holder computed at the Highest Lawful Rate, then the amount of
interest payable to the Holder in respect of such subsequent interest
computation period shall continue to be computed at the Highest Lawful Rate
until the total amount of interest payable to the Holder shall equal the total
amount of interest which would have been payable to the Holder if the total
amount of interest had been computed without giving effect to the provisions of
the foregoing sentence.
9. No Negotiation. Subject to Section 11, this Note is not negotiable.
10. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
11. Security Interest. Stoody may grant a security interest in or
otherwise pledge this Note as security (and endorse this Note to the order of
such secured party or pledgee), and any Person to whom such security interest is
granted or to whom this
-3- Seller Purchase Price Note
278
Note is pledged shall be bound by, and for all purposes takes this Note subject
to, the restrictions and other provisions set forth herein.
12. Captions. Paragraph captions used in this Note are provided solely
for convenience of reference and shall not affect the meaning or interpretation
of any provision of this Note.
-4- Seller Purchase Price Note
279
IN WITNESS WHEREOF, Xxxxxx has caused this Note to be signed and
delivered by its duly authorized officer as of the date first above written.
XXXXXX EQUIPMENT COMPANY
By: /s/ XXXXXXX X. XXXX
---------------------------
Name: Xxxxxxx X. Xxxx
Title: VP
S-1 Seller Purchase Price Note
280
SELLER PURCHASE PRICE NOTE
January 31, 2000
FOR VALUE RECEIVED, the undersigned, XXXXXX EQUIPMENT COMPANY, a
Delaware corporation ("Xxxxxx"), promises to pay to Thermal Dynamics
Corporation, a Delaware corporation ("Thermal" and together with its successors
and assigns, the "Holder"), on the terms and subject to the conditions set
forth in this promissory note (this "Note") and in that certain Receivables
Purchase and Sale Agreement of even date herewith (the "RPSA") among
Xxxxxx, Thermal and certain other subsidiaries of Thermadyne Mfg. LLC, an amount
equal to the aggregate unpaid principal amount of all borrowings deemed to be
made by Xxxxxx from Thermal pursuant to Section 2.02(d) of the RPSA. Such
amount, as shown in the records of the Servicer, will be rebuttable presumptive
evidence of the principal amount and interest owing under this Note.
1. RPSA. This Note is a Seller Purchase Price Note described, and is
subject to the terms and conditions set forth, in the RPSA. Reference is hereby
made to the RPSA for a statement of certain other rights and obligations of
Xxxxxx and Thermal.
2. Rules of Construction; Definitions. Certain rules of construction
governing the interpretation of this Note are set forth in Annex I to the RPSA
and, except as otherwise specifically provided herein, capitalized terms used
but not defined herein have the meanings ascribed thereto in Annex I to the
RPSA. In addition, as used herein, the following terms have the following
meanings:
"Final Maturity Date" means the date occurring one year and one
day after the Scheduled Initial Principal Payment Date.
"Highest Lawful Rate" has the meaning set forth in paragraph 8
hereof.
"Reference Rate" means, with respect to any day occurring in a
Collection Period, the rate of interest publicly announced from time to
time by ABN AMRO Incorporated as its "prime rate" and in effect on the
first day of such Collection Period, as determined by the Servicer.
3. Interest. Xxxxxx promises to pay interest on the aggregate unpaid
principal amount of this Note outstanding on
Seller Purchase Price Note
281
each day during a Collection Period at an adjustable rate per annum equal to the
LIBO Rate in effect on the second Business Day in London prior to the
commencement of such Collection Period.
4. Interest Payment Dates.
(a) Xxxxxx shall pay accrued interest on this Note on each
Settlement Date and on the Final Maturity Date. Xxxxxx also shall
pay accrued interest on the principal amount of each prepayment
hereof on the date such prepayment is made.
(b) Notwithstanding the provisions of paragraph 4 (a), in
the event that on the date an interest payment is due hereunder
the amount of funds available therefor is insufficient to pay any
amount due pursuant to paragraph 4 (a), then interest shall be
payable only to the extent that funds are available thereof or.
All interest on this Note that is not paid when due pursuant to
this paragraph 4 (b) shall be automatically deferred, shall
constitute a portion of the principal balance of this Note and
shall be payable on the next date on which an interest payment on
this Note is due and on which funds are available therefor, and
all such unpaid interest shall accrue interest at the LIBO Rate
until paid in full.
5. Basis of Computation. Interest accrued hereunder shall be computed
for the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Any unpaid principal of this Note shall
only become due and payable on the Final Maturity Date. The principal amount of
and accrued interest on this Note may be prepaid on any Business Day without
premium or penalty; provided, that no prepayment shall be made by Xxxxxx to the
extent that such prepayment would result in a default in the payment of any
other amount required to be paid by Xxxxxx under any Program Document.
7. General. No failure or delay on the part of the Holder in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Note shall in any event be effective unless (a) the same shall be in
writing and signed and delivered by Xxxxxx and Thermal, and (b) all consents
required for such actions under the Program Documents shall have been received
by the appropriate Persons.
-2- Seller Purchase Price Note
282
8. Limitation on Interest. Notwithstanding anything in this Note to the
contrary, Xxxxxx shall never be required to pay unearned interest on any amount
outstanding hereunder, and shall never be required to pay interest on the
principal amount outstanding hereunder, at a rate in excess of the maximum
nonusurious interest rate that may be contracted for, charged or received under
applicable federal or state law (such maximum rate being herein called the
"Highest Lawful Rate"). If the effective rate of interest which would otherwise
be payable under this Note would exceed the Highest Lawful Rate, or the Holder
shall receive any unearned interest or shall receive monies that are deemed to
constitute interest which would increase the effective rate of interest payable
by Xxxxxx under this Note to a rate in excess of the Highest Lawful Rate, then
(a) the amount of interest which would otherwise be payable by Xxxxxx under this
Note shall be reduced to the amount allowed by applicable law, and (b) any
unearned interest paid by Xxxxxx or any interest paid by Xxxxxx in excess of the
Highest Lawful Rate shall be refunded to Xxxxxx. Without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged or
received by the Holder under this Note that are made for the purpose of
determining whether such rate exceeds the Highest Lawful Rate shall be made, to
the extent permitted by applicable usury laws (now or hereafter enacted), by
amortizing, prorating and spreading in equal parts during the actual period
during which any amount has been outstanding hereunder all interest at any time
contracted for, charged or received by Xxxxxx in connection herewith. If at any
time and from time to time (i) the amount of interest payable to the Holder on
any date shall be computed at the Highest Lawful Rate pursuant to the provisions
of the foregoing sentence, and (ii) in respect of any subsequent interest
computation period the amount of interest otherwise payable to the Holder would
be less than the amount of interest payable to the Holder computed at the
Highest Lawful Rate, then the amount of interest payable to the Holder in
respect of such subsequent interest computation period shall continue to be
computed at the Highest Lawful Rate until the total amount of interest payable
to the Holder shall equal the total amount of interest which would have been
payable to the Holder if the total amount of interest had been computed without
giving effect to the provisions of the foregoing sentence.
9. No Negotiation. Subject to Section 11, this Note is not negotiable.
10. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
11. Security Interest. Thermal may grant a security interest in or
otherwise pledge this Note as security (and
-3- Seller Purchase Price Note
283
endorse this Note to the order of such secured party or pledgee), and any Person
to whom such security interest is granted or to whom this Note is pledged shall
be bound by, and for all purposes takes this Note subject to, the restrictions
and other provisions set forth herein.
12. Captions. Paragraph captions used in this Note are provided solely
for convenience of reference and shall not affect the meaning or interpretation
of any provision of this Note.
-4- Seller Purchase Price Note
284
IN WITNESS WHEREOF, Xxxxxx has caused this Note to be signed and
delivered by its duly authorized officer as of the date first above written.
XXXXXX EQUIPMENT COMPANY
By: /s/ XXXXXXX X. XXXX
--------------------------
Name:
Title:
S-1 Seller Purchase Price Note
285
SELLER PURCHASE PRICE NOTE
January 31, 2000
FOR VALUE RECEIVED, the undersigned, XXXXXX EQUIPMENT COMPANY, a
Delaware corporation ("Xxxxxx"), promises to pay to Tweco Products, Inc., a
Delaware corporation ("Tweco" and together with its successors and assigns, the
"Holder"), on the terms and subject to the conditions set forth in this
promissory note (this "Note") and in that certain Receivables Purchase and Sale
Agreement of even date herewith (the "RPSA") among Xxxxxx, Tweco and certain
other subsidiaries of Thermadyne Mfg. LLC, an amount equal to the aggregate
unpaid principal amount of all borrowings deemed to be made by Xxxxxx from Tweco
pursuant to Section 2.02(d) of the RPSA. Such amount, as shown in the records of
the Servicer, will be rebuttable presumptive evidence of the principal amount
and interest owing under this Note.
1. RPSA. This Note is a Seller Purchase Price Note described, and is
subject to the terms and conditions set forth, in the RPSA. Reference is hereby
made to the RPSA for a statement of certain other rights and obligations of
Xxxxxx and Xxxxx.
0. Rules of Construction; Definitions. Certain rules of construction
governing the interpretation of this Note are set forth in Annex I to the RPSA
and, except as otherwise specifically provided herein, capitalized terms used
but not defined herein have the meanings ascribed thereto in Annex I to the
RPSA. In addition, as used herein, the following terms have the following
meanings:
"Final Maturity Date" means the date occurring one year and one
day after the Scheduled Initial Principal Payment Date.
"Highest Lawful Rate" has the meaning set forth in paragraph 8
hereof.
"Reference Rate" means, with respect to any day occurring in a
Collection Period, the rate of interest publicly announced from time
to time by ABN AMRO Incorporated as its "prime rate" and in effect on
the first day of such Collection Period, as determined by the
Servicer.
3. Interest. Xxxxxx promises to pay interest on the aggregate unpaid
principal amount of this Note outstanding on each day during a Collection Period
at an adjustable rate per
Seller Purchase Price Note
286
annum equal to the LIBO Rate in effect on the second Business Day in London
prior to the commencement of such Collection Period.
4. Interest Payment Dates.
(a) Xxxxxx shall pay accrued interest on this Note on
each Settlement Date and on the Final Maturity Date. Xxxxxx also
shall pay accrued interest on the principal amount of each
prepayment hereof on the date such prepayment is made.
(b) Notwithstanding the provisions of paragraph 4(a),
in the event that on the date an interest payment is due
hereunder the amount of funds available therefor is insufficient
to pay any amount due pursuant to paragraph 4(a), then interest
shall be payable only to the extent that funds are available
therefor. All interest on this Note that is not paid when due
pursuant to this paragraph 4(b) shall be automatically deferred,
shall constitute a portion of the principal balance of this Note
and shall be payable on the next date on which an interest
payment on this Note is due and on which funds are available
therefor, and all such unpaid interest shall accrue interest at
the LIBO Rate until paid in full.
5. Basis of Computation. Interest accrued hereunder shall be computed
for the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Any unpaid principal of this Note shall
only become due and payable on the Final Maturity Date. The principal amount of
and accrued interest on this Note may be prepaid on any Business Day without
premium or penalty; provided, that no prepayment shall be made by Xxxxxx to the
extent that such prepayment would result in a default in the payment of any
other amount required to be paid by Xxxxxx under any Program Document.
7. General. No failure or delay on the part of the Holder in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Note shall in any event be effective unless (a) the same shall be in
writing and signed and delivered by Xxxxxx and Tweco, and (b) all consents
required for such actions under the Program Documents shall have been received
by the appropriate Persons.
8. Limitation on Interest. Notwithstanding anything in this Note to the
contrary, Xxxxxx shall never be required to pay
-2- Seller Purchase Price Note
287
unearned interest on any amount outstanding hereunder, and shall never be
required to pay interest on the principal amount outstanding hereunder, at a
rate in excess of the maximum nonusurious interest rate that may be contracted
for, charged or received under applicable federal or state law (such maximum
rate being herein called the "Highest Lawful Rate"). If the effective rate of
interest which would otherwise be payable under this Note would exceed the
Highest Lawful Rate, or the Holder shall receive any unearned interest or shall
receive monies that are deemed to constitute interest which would increase the
effective rate of interest payable by Xxxxxx under this Note to a rate in excess
of the Highest Lawful Rate, then (a) the amount of interest which would
otherwise be payable by Xxxxxx under this Note shall be reduced to the amount
allowed by applicable law, and (b) any unearned interest paid by Xxxxxx or any
interest paid by Xxxxxx in excess of the Highest Lawful Rate shall be refunded
to Xxxxxx. Without limitation of the foregoing, all calculations of the rate of
interest contracted for, charged or received by the Holder under this Note that
are made for the purpose of determining whether such rate exceeds the Highest
Lawful Rate shall be made, to the extent permitted by applicable usury laws (now
or hereafter enacted), by amortizing, prorating and spreading in equal parts
during the actual period during which any amount has been outstanding hereunder
all interest at any time contracted for, charged or received by Xxxxxx in
connection herewith. If at any time and from time to time (i) the amount of
interest payable to the Holder on any date shall be computed at the Highest
Lawful Rate pursuant to the provisions of the foregoing sentence, and (ii) in
respect of any subsequent interest computation period the amount of interest
otherwise payable to the Holder would be less than the amount of interest
payable to the Holder computed at the Highest Lawful Rate, then the amount of
interest payable to the Holder in respect of such subsequent interest
computation period shall continue to be computed at the Highest Lawful Rate
until the total amount of interest payable to the Holder shall equal the total
amount of interest which would have been payable to the Holder if the total
amount of interest had been computed without giving effect to the provisions of
the foregoing sentence.
9. No Negotiation. Subject to Section 11, this Note is not negotiable.
10. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
11. Security Interest. Tweco may grant a security interest in or
otherwise pledge this Note as security (and endorse this Note to the order of
such secured party or pledgee), and any Person to whom such security interest is
granted or to whom this
-3- Seller Purchase Price Note
288
Note is pledged shall be bound by, and for all purposes takes this Note subject
to, the restrictions and other provisions set forth herein.
12. Captions. Paragraph captions used in this Note are provided solely
for convenience of reference and shall not affect the meaning or interpretation
of any provision of this Note.
-4- Seller Purchase Price Note
289
IN WITNESS WHEREOF, Xxxxxx has caused this Note to be signed and
delivered by its duly authorized officer as of the date first above written.
XXXXXX EQUIPMENT COMPANY
By: /s/ XXXXXXX X. XXXX
---------------------------
Name: Xxxxxxx X. Xxxx
Title: VP
S-1 Seller Purchase Price Note
290
TAB 6
291
================================================================================
RECEIVABLES PURCHASE AND SALE AGREEMENT
Dated as of January 31, 2000
among
XXXXXX EQUIPMENT COMPANY,
as Seller and Servicer,
THERMADYNE RECEIVABLES, INC.,
as Purchaser
and
THERMADYNE MFG. LLC
as Guarantor
================================================================================
292
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.01. Certain Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
1.02. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . 1
1.03. Other Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.04. Computation of Time Periods . . . . . . . . . . . . . . . . . . 2
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASES
2.01. Agreement to Purchase . . . . . . . . . . . . . . . . . . . . . 2
2.02. Payment for Purchases; Adjustments to Purchase Price . . . . . . 4
2.03. Calculation of Purchase Price . . . . . . . . . . . . . . . . . 6
2.04. Payments and Computations, Etc. . . . . . . . . . . . . . . . . 6
2.05. Transfer of Records to TRI . . . . . . . . . . . . . . . . . . . 7
2.06. Additional Sellers . . . . . . . . . . . . . . . . . . . . . . . 7
2.07. Termination of Sellers . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01. Representations and Warranties of Xxxxxx . . . . . . . . . . . . 7
3.02. Representations and Warranties of TRI. . . . . . . . . . . . . . 11
3.03. Representations and Warranties of Thermadyne . . . . . . . . . . 12
ARTICLE IV
GENERAL COVENANTS OF XXXXXX AND THERMADYNE
4.01. Affirmative Covenants of Xxxxxx . . . . . . . . . . . . . . . . 15
4.02. General Reporting Requirements of Xxxxxx. . . . . . . . . . . . 19
4.03. Negative Covenants of Xxxxxx . . . . . . . . . . . . . . . . . 19
4.04. Covenants of Thermadyne . . . . . . . . . . . . . . . . . . . . 21
4.05. General Reporting Requirements of Thermadyne. . . . . . . . . . 23
ARTICLE V
ADMINISTRATION AND COLLECTION
5.01. Collection of Receivables . . . . . . . . . . . . . . . . . . . 24
5.02. Designation of Servicer . . . . . . . . . . . . . . . . . . . . 25
5.03. Duties of the Servicer; Daily Reports and
Settlement Statements; Servicer Fee . . . . . . . . . . . . . . 26
5.04. Responsibilities of Xxxxxx . . . . . . . . . . . . . . . . . . 28
5.05. Further Action Evidencing Purchases . . . . . . . . . . . . . . 29
5.06. Application of Collections . . . . . . . . . . . . . . . . . . 30
5.07. No Recourse for Credit Problems . . . . . . . . . . . . . . . . 30
(i)
293
ARTICLE VI
INDEMNIFICATION
6.01. Indemnities by Xxxxxx . . . . . . . . . . . . . . . . . . . . . 30
6.02. Indemnities by Thermadyne . . . . . . . . . . . . . . . . . . . 33
ARTICLE VII
THERMADYNE GUARANTY
7.01. Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . 36
8.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . 37
8.04. Binding Effect; Assignability . . . . . . . . . . . . . . . . . 37
8.05. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
PERSONAL SERVICE AND VENUE; WAIVER OF JURY TRIAL . . . . . . . 38
8.06. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . 39
8.07. References to Xxxxxx . . . . . . . . . . . . . . . . . . . . . 39
8.08. Execution in Counterparts; Severability . . . . . . . . . . . . 40
8.09. Termination Date . . . . . . . . . . . . . . . . . . . . . . . 40
8.10. No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.11. No Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 40
8.12. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 41
8.13. Survival of Agreement . . . . . . . . . . . . . . . . . . . . . 41
(ii)
294
ANNEXES, SCHEDULES AND EXHIBITS
Annex I - Defined Terms
Schedule 3.01(h) - Location of Records and Computer Software
Schedule 3.01(i) - List of Lockbox Banks
Schedule 3.01(j) - Names Under Which Xxxxxx Has Conducted Business
Schedule 3.01(l) - List of Computer Programs
Exhibit A - Form of Xxxxxx Purchase Price Note
Exhibit B - Credit and Collection Policy
Exhibit C-1 - Form of Daily Report (Pre-Liquidation Period)
Exhibit C-2 - Form of Daily Report (Post-Liquidation Period)
Exhibit D-1 - Form of Settlement Statement (Pre-Liquidation Period)
Exhibit D-2 - Form of Settlement Statement (Post-Liquidation Period)
Exhibit E - Form of Officer's Certificate
(iii)
295
RECEIVABLES PURCHASE AND SALE AGREEMENT
THIS RECEIVABLES PURCHASE AND SALE AGREEMENT (this
"Agreement"), dated as of January 31, 2000, is among Xxxxxx Equipment Company
("Xxxxxx"), a Delaware corporation, Thermadyne Receivables, Inc., a Delaware
corporation ("TRI") and Thermadyne Mfg. LLC, a Delaware limited liability
company ("Thermadyne")
WITNESSETH:
WHEREAS, Xxxxxx is contemporaneously herewith entering into
the First Tier RPSA pursuant to which it will acquire accounts receivable and
certain related assets from certain Sellers;
WHEREAS, Xxxxxx originates its own accounts receivable and
related assets;
WHEREAS, TRI is a wholly-owned subsidiary of Xxxxxx;
WHEREAS, TRI was formed for the purpose of purchasing such
accounts receivable and related assets from Xxxxxx and other transferors;
WHEREAS, Xxxxxx and TRI have agreed to enter into this
Agreement to evidence the terms and conditions under which such purchases shall
take place;
WHEREAS, Thermadyne joins into this agreement to guarantee
certain obligations of Xxxxxx and Sellers;
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party hereto, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Definitions. For all purposes of this
Agreement, except as otherwise specifically provided herein, capitalized terms
used in this Agreement without definition shall have the meanings ascribed to
such terms in Annex I hereto.
SECTION 1.02. Accounting Terms. Under this Agreement, all
accounting terms not specifically defined herein shall be
296
interpreted, all accounting determinations made and all financial statements
prepared in accordance with GAAP.
SECTION 1.03. Other Terms. All other undefined terms contained
in this Agreement shall, unless the context indicates otherwise, have the
meanings provided for by the UCC to the extent the same are used or defined
therein. The words "herein," "hereof," and "hereunder" and other words of
similar import refer to this Agreement as a whole, including the annexes,
exhibits and schedules hereto, as the same may from time to time be amended,
supplemented or otherwise modified and not to any particular section,
subsection or clause contained in this Agreement, and all references to
Sections, Annexes, Exhibits and Schedules shall mean, unless the context clearly
indicates otherwise, the Sections hereof and the Annexes, Exhibits and Schedules
attached hereto, the terms of which Annexes, Exhibits and Schedules are hereby
incorporated into this Agreement. Whenever appropriate, in the context, terms
used herein in the singular also include the plural, and vice versa.
SECTION 1.04. Computation of Time Periods. 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 mean "to but excluding."
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01. Agreement to Purchase. (a) On the terms and
conditions hereinafter set forth, on each Business Day from and after the
Effective Date until the occurrence of the Termination Date, TRI agrees (except
as otherwise provided in Section 2.01(c)) to purchase from Xxxxxx, and Xxxxxx
agrees to sell to TRI, (i) all of the Receivables outstanding as of the Business
Day before such date, which have not been previously purchased by TRI, (ii) all
of the Related Security relating to such Receivables, (iii) all Collections with
respect to and other proceeds of such Receivables and Related Security, (iv) all
rights and interests of Xxxxxx in respect of such Receivables and Related
Security (including without limitation rights and interests under or in
connection with the First Tier RPSA), and (v) all proceeds of the foregoing
(collectively, the "Purchased Assets"). Until the Termination Date, each
Purchase described in the preceding sentence shall occur no later than 4:00 p.m.
(New York City time) on the date of such Purchase concurrently with payment of
the Purchase Price required under Section 2.02. Prior to making any Purchase
hereunder, TRI may request from Xxxxxx,
-2-
297
and Xxxxxx shall deliver, such approvals, information, reports or documents as
TRI may reasonably request.
(b) It is the intention of the parties hereto that each
Purchase of Receivables to be made hereunder shall constitute a "sale of
accounts," as such term is used in Article 9 of the UCC, and not a loan secured
by such accounts. Except for Noncomplying Receivables Adjustments and Dilution
Adjustments, each sale of Receivables by Xxxxxx to TRI is made without recourse
to Xxxxxx; provided, however, that (i) Xxxxxx shall be liable to TRI for all
representations, warranties, covenants and indemnities made by Xxxxxx pursuant
to the terms of this Agreement (including, without limitation, under Section
6.01), and (ii) such sale does not constitute and is not intended to result in
an assumption by TRI or any assignee thereof of any obligation of Xxxxxx or any
other Person arising in connection with the Receivables, the Related Security
and the related Contracts, or any other obligations of Xxxxxx or any other
Person. In view of the intention of the parties hereto that the Purchases of
Receivables to be made hereunder shall constitute a sale of such Receivables
rather than a loan secured by such Receivables, Xxxxxx agrees to note in its
external financial statements that its Receivables have been sold to TRI.
(c) Notwithstanding any other provision of this Article II,
TRI shall not be required to purchase from Xxxxxx nor shall Xxxxxx be required
to sell to TRI any Receivables originated by Xxxxxx or a Seller on or after the
earlier of (i) the Termination Date, (ii) the date of any Insolvency Event
occurring with respect to Thermadyne, Xxxxxx or such Seller, (iii) the discovery
by Xxxxxx of any Liquidation Event described in clause (h) of the definition
thereof with respect to Receivables owned or originated by Xxxxxx or
Receivables originated by such Seller or Related Security or Collections with
respect thereto or (iv) the date on which TRI is notified or is otherwise aware
of a filing of any Lien by the IRS or the PBGC; provided, however, that TRI
shall automatically resume its purchase of the Receivables from Xxxxxx if (A)
with respect to clause (ii) above, such Insolvency Event arises as a result of
an involuntary bankruptcy or other proceeding filed against Thermadyne, Xxxxxx
or such Seller, and such proceeding is dismissed or otherwise terminated prior
to the Termination Date, (B) with respect to clause (iii) above, such
Liquidation Event is cured (without prejudice to the Investors) prior to the
Termination Date, and (C) with respect to clause (iv) above, TRI has received a
written notice from the IRS or the PBGC, as applicable, that such Lien has been
released by the IRS or the PBGC, as applicable.
-3-
298
SECTION 2.02. Payment for Purchases; Adjustments to Purchase
Price. (a) All proceeds received by TRI from the sale of the Certificates and
the reinvestment of Collections, except to the extent otherwise prohibited under
the RPA, shall be remitted to Xxxxxx for the purposes of: first, paying any
obligations of TRI to Xxxxxx hereunder, pursuant to Section 8.07(f) of the RPA,
and then, subject to the legal availability of funds therefor, paying any
dividends on and/or redemptions of the stock of TRI in accordance with TRI's
standing resolutions for the payment of such dividends and redemptions to
Xxxxxx.
(b) Each Purchase hereunder shall be consummated through TRI's
payment of the applicable Purchase Price therefor in cash, except (i) as
otherwise provided in Section 2.02(e) below, and (ii) that TRI may set off
against the amount of any such payment amounts then owing to TRI as Dilution
Adjustments, Noncomplying Receivables Adjustments and/or other amounts owing to
TRI under this Agreement.
(c) It shall be a condition precedent to each Purchase
hereunder from Xxxxxx that (i) the representations and warranties of Xxxxxx
contained in Section 3.01 are correct in all material respects as to it and as
to the Receivables purchased from it on and as of such day as though made on and
as of such date (except for representations and warranties which relate to a
specific date only), and (ii) no event has occurred and is continuing, or would
result from such Purchase, which constitutes a Liquidation Event. Xxxxxx, by
accepting the proceeds of the Purchase Price for a Purchase, shall be deemed to
have certified to TRI the satisfaction of the foregoing conditions precedent;
provided, however, that Xxxxxx shall not be deemed to have certified the
non-existence of a Liquidation Event of which it does not have knowledge which
Liquidation Event may have arisen solely on account of actions or omissions of
TRI. Upon the payment of the Purchase Price for any Purchase, title to the
Purchased Assets included in such Purchase shall vest in TRI, whether or not the
conditions precedent to such Purchase were in fact satisfied.
(d) Subject to Section 2.02(e) below, TRI shall pay all or
part of the applicable Purchase Price for all Purchases of Receivables to be
made on any day by paying cash.
(e) If, on any day, TRI has insufficient funds to pay in full
the Purchase Price owed on such day to Xxxxxx, or if Xxxxxx otherwise consents,
TRI may pay all or part of the applicable Purchase Price to be made on such day
by borrowing under its promissory note, in the form of Exhibit A attached hereto
(the "Xxxxxx Purchase Price Note"), issued in favor of Xxxxxx and Xxxxxx shall
have irrevocably agreed to advance, and shall be deemed to have advanced, a
revolving loan in the amount so specified by TRI; provided, however, that TRI
may only make
-4-
299
payments of the Purchase Price through the use of such revolving loans to the
extent that the borrowing of such loans does not cause TRI to be in violation of
Section 7.03 of the RPA. Each such revolving loan shall be payable in accordance
with the terms and provisions of the Xxxxxx Purchase Price Note, this Agreement
and Article VIII of the RPA. Xxxxxx may evidence the making of each revolving
loan by recording the date and amount thereof on the grid attached to the Xxxxxx
Purchase Price Note (or any continuation thereof); provided that failure to
make any such recordation on such grid or any error in such grid shall not
adversely affect Victor's rights to recover the outstanding unpaid principal
amount of the revolving loans made under the Xxxxxx Purchase Price Note.
(f) On each Business Day, Xxxxxx shall (or shall cause the
Servicer to) report the amount of Dilution, Volume Rebate Offsets, if any, and
the Noncomplying Receivables Adjustment applicable to such day. The Dilution
Adjustment owing on account of such Dilution, and any Volume Rebate Offsets
shall be deducted from the Purchase Price payable on such date; provided,
however, that if such Dilution Adjustment shall exceed such Purchase Price, TRI
shall be entitled to a reduction in the principal amount of the Xxxxxx Purchase
Price Note and, if such principal amount shall have been reduced to zero, to a
credit against the Purchase Price payable for future sales of Receivables, in an
aggregate amount equal to such excess; and provided, further, that if any such
credit is not fully utilized within five (5) Business Days, then Xxxxxx shall
pay to TRI the remaining amount of such credit in cash. If any such Dilution
relates to goods which are returned to Xxxxxx or repossessed by Xxxxxx, then,
concurrently with payment of such Dilution Adjustment (whether through offset or
otherwise), TRI shall assign and transfer to Xxxxxx, without any further action
or consideration, all of TRI's right, title and interest in such returned or
repossessed goods. In addition, if on any Business Day (i) any Receivables
previously sold to TRI under this Agreement have been discovered to be
Noncomplying Receivables, then such Noncomplying Receivables Adjustment shall
also be deducted from the Purchase Price payable to Xxxxxx on such day;
provided, however, if (after giving effect to the reduction thereto on account
of the Dilution Adjustment on such day), the Noncomplying Receivables Adjustment
exceeds such Purchase Price, TRI shall be entitled to a credit against the
Purchase Price payable for future sales of Receivables; and provided, further,
that if any such credit is not fully utilized within five (5) Business Days,
then Xxxxxx shall pay to TRI the remaining amount of such credit in cash. After
the Liquidation Period has commenced, all further Dilution Adjustments and
Noncomplying Receivables Adjustments owing by Xxxxxx must be paid in cash within
five (5) Business Days of the identification thereof. If, on any date, the
Servicer notifies TRI that TRI has received Collections on account of a
-5-
300
Noncomplying Receivable for which a Noncomplying Receivables Adjustment was
previously made, then the amount of such Collections must be added to the
Purchase Price payable to Xxxxxx which previously paid the amount of such
Noncomplying Receivable on such date.
SECTION 2.03. Calculation of Purchase Price. (a) The Purchase
Price Percentage applicable to Purchases from Xxxxxx hereunder shall be set
forth in Schedule 1 of Annex I hereto for the period until (but not including)
the first Settlement Date. Thereafter and from and after each subsequent
Settlement Date, the Purchase Price Percentage applicable to Purchases from
Xxxxxx hereunder shall be as set forth in the most recent Settlement Statement
prepared by the Servicer pursuant to Section 5.03(b), and the Purchase Price
owed for any Business Day shall be as set forth in the Daily Report prepared by
the Servicer pursuant to Section 5.03(b). Xxxxxx agrees to provide to the
Servicer on a timely basis all information necessary to calculate the applicable
Purchase Price Percentage and the applicable Purchase Price.
(b) Until TRI shall notify Xxxxxx or the Servicer of any
exceptions to the calculations contained in any Daily Report or Settlement
Statement, each such Daily Report and Settlement Statement shall be deemed to be
correct as originally delivered. If TRI shall have notified Xxxxxx or the
Servicer of any exceptions to the Daily Report or Settlement Statement, Xxxxxx,
the Servicer and TRI shall promptly endeavor to resolve the matters set forth in
such notice. Until such resolution is agreed upon, however, the Daily Report or
Settlement Statement originally delivered by the Servicer shall, absent manifest
error, continue to be presumed correct for purposes of calculating the
applicable Purchase Price payable hereunder until a resolution is reached to the
contrary. Nothing contained in this Section 2.03(b), however, shall be deemed to
limit the rights of TRI under Section 6.01.
SECTION 2.04. Payments and Computations, Etc. All amounts to
be paid by TRI to Xxxxxx or by Xxxxxx to TRI hereunder shall be paid in
accordance with the terms hereof no later than 4:00 p.m. (New York City time) on
the day when due in Dollars in immediately available funds to such account as
Xxxxxx or TRI, as applicable, may from time to time specify in writing. Payments
received by Xxxxxx or TRI after such time shall be deemed to have been received
on the next Business Day. In the event that any payment becomes due on a day
which is not a Business Day, then such payment shall be made on the next
succeeding Business Day. Each party hereto shall, to the extent permitted by
law, pay to the other party, on demand, interest on all amounts not paid when
due hereunder at two percent (2%) per annum above the Discount Rate in effect on
the date such payment was due; provided,
-6-
301
however, that such interest 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 365 or, as applicable 366 days for the
actual number of days (including the first but excluding the last day) elapsed.
SECTION 2.05. Transfer of Records to TRI. (a) Each Purchase of
Receivables hereunder shall include the transfer to TRI of all of Victor's right
and title to and interest in the Records relating to such Receivables (including
any such Records transferred to Xxxxxx pursuant to the First Tier RPSA) and
Xxxxxx hereby agrees that such transfer shall be effected automatically with
each such Purchase, without any further documentation. In connection with such
transfer, Xxxxxx shall use all reasonable efforts to enable TRI to use all
software used by Xxxxxx or any Seller to account for the Receivables, to the
extent necessary to administer the Receivables.
(b) Xxxxxx shall take such action reasonably requested by TRI,
from time to time hereafter, that may be necessary or appropriate to ensure that
TRI has (i) an enforceable ownership interest in the Records relating to the
Receivables purchased from Xxxxxx hereunder and (ii) an enforceable right
(whether by license or sublicense or otherwise) to use all of the computer
software used to account for the Receivables and/or to recreate such Records.
SECTION 2.06. Additional Sellers. If at any time prior to the
Termination Date, Xxxxxx shall designate any Subsidiary of Thermadyne as an
additional "Seller" pursuant to the procedures (and subject to the terms) set
forth in Section 2.06 of the First Tier RPSA, such additional seller shall be a
"Seller" for all purposes of this Agreement.
SECTION 2.07. Termination of Sellers. If at any time prior to
the Termination Date, Xxxxxx shall terminate the obligations of a Seller
pursuant to the procedures (and subject to the terms) set forth in Section 2.07
of the First Tier RPSA, such Terminating Seller shall cease to be a Seller for
all purposes of this Agreement on the date such termination becomes effective.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of Xxxxxx. Xxxxxx
represents and warrants that as of the Effective Date and (except for
representations and warranties which relate to a specific date only) as of the
date of each Purchase:
-7-
302
(a) Xxxxxx is duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, and is duly qualified
to do business and is in good standing as a foreign corporation in each
jurisdiction where its ownership of property or the conduct of its business
requires such qualification, except where the failure to be so qualified could
not reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by Xxxxxx of this
Agreement, the other Program Documents to which it is a party and all other
agreements, instruments and documents delivered by Xxxxxx hereunder and
thereunder, and the transactions contemplated hereby and thereby, are within
Victor's corporate powers, have been duly authorized by all necessary corporate
action, and do not and will not (i) result in or require the creation of any
Lien upon or with respect to any of its properties except as created in favor of
TRI or the Trustee under the Program Documents or (ii) violate, conflict with or
result in a breach or default under any of the following (which, in the case of
clause (B) or (C) below, would reasonably be expected to cause a Material
Adverse Effect): (A) Victor's certificate of incorporation and bylaws; (B) any
law, rule or regulation applicable to Xxxxxx or its property; (C) any
contractual restriction contained in any material indenture, loan or credit
agreement, lease, mortgage, security agreement, bond, note, or other agreement
or instrument binding on Xxxxxx or to which its property is subject; or (D) any
order, writ, judgment, award, injunction or decree binding on Xxxxxx or to which
its property is subject. No transaction contemplated hereby requires compliance
with any bulk sales act or similar law. The Program Documents to which it is a
party have been duly executed and delivered on behalf of Xxxxxx.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or other
Person is required for the due execution, delivery and performance by Xxxxxx of
this Agreement, any other Program Document or any other agreement, document or
instrument delivered hereunder or thereunder except for the filing of UCC
financing statements to evidence TRI's ownership interests in the Receivables
purchased hereunder and all proceeds thereof, which filings have been duly made
and are in full force and effect, and for other consents which have been duly
obtained.
(d) This Agreement and each of the other Program Documents to
which Xxxxxx is a party constitutes the legal, valid and binding obligations of
Xxxxxx enforceable against Xxxxxx in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights
-8-
303
generally and by general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(e) Immediately prior to TRI's acquisition of each Purchased
Asset from Xxxxxx, Xxxxxx shall be the lawful owner of, and have good title to,
such Purchased Asset. Upon TRI's acquisition of each Receivable from Xxxxxx, TRI
shall acquire all of the right, title and interest of Xxxxxx in such Receivable
and all Purchased Assets relating thereto, free and clear of any Liens (except
Permitted Liens and any Liens created by the Program Documents). The
conveyances of the Purchased Assets from Xxxxxx by TRI constitute true and valid
sales or contributions and transfers for consideration (and not merely a pledge
of such Purchased Assets for security purposes), enforceable against the
creditors of Xxxxxx and no such Purchased Assets shall constitute property of
Xxxxxx. No effective financing statement or other instrument similar in effect
covering all or any part of the Purchased Assets naming Xxxxxx as assignor or
debtor shall at such time be on file in any filing or recording office except as
may be filed in favor of TRI, the Trustee or their respective assigns pursuant
to the Program Documents.
(f) The use of all funds received by Xxxxxx under this
Agreement will not violate Regulations T, U and X, as in effect from time to
time.
(g) No information, exhibit, financial statement, Records or
report furnished or to be furnished by Xxxxxx to TRI or its successors and
assigns (including the Trustee and the Investors) in connection with this
Agreement or any of the other Program Documents (including without limitation
information in the Offering Memorandum) is or shall be inaccurate in any
material respect, or contains or shall contain any material misstatement of
fact, or omits or shall omit to state a material fact or any fact necessary to
make the statements contained therein not materially misleading in light of the
circumstances under which they were made; provided that the parties hereto
understand and agree that one (1) or more mistakes in the calculation of the Net
Eligible Receivables (or in information supplied for purposes of such
calculation) that causes the Net Eligible Receivables to be overstated by less
than $150,000.00 (in the aggregate for all such mistakes by all parties) and
such miscalculation, after Xxxxxx became aware of it, has continued uncorrected
for a period not exceeding two (2) days shall not be considered material for
purposes of this representation and warranty.
(h) The principal place of business and chief executive office
of Xxxxxx are located at the address of Xxxxxx
-9-
304
listed in Section 8.02 and the locations of the offices where the Records and
computer software of Xxxxxx are kept are listed on Schedule 3.01(h) (or at such
other locations, notified to TRI in accordance with Section 4.01(d), in
jurisdictions where all action required by Section 5.05 has been taken and
completed).
(i) Each Obligor with respect to Receivables has been
instructed to remit payment on the Receivables either to (1) one of the Lockbox
Accounts to be utilized by TRI or (2) directly to the Collection Account. From
and after the Effective Date, Xxxxxx will have no right, title and/or interest
to any of the Lockbox Accounts with respect to the Receivables and will not, and
will not permit any Seller to, maintain lockbox accounts in its own name for the
collection of the Receivables. The account numbers of all Lockbox Accounts,
together with the names and addresses of all the Lockbox Banks maintaining such
Lockbox Accounts, are specified in Schedule 3.01(i).
(j) During the past five (5) years Xxxxxx has had no trade
names, fictitious names, assumed names or any other names under which it has
done or is doing business except as set forth on Schedule 3.01(j).
(k) There are no actions, suits or proceedings pending, or to
the knowledge of Xxxxxx threatened, against it or affecting it or its property
in any court, or before any arbitrator of any kind, or before or by any
governmental body, which (i) challenge the validity, legality or enforceability
of this Agreement or any of the other Program Documents, or (ii) if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
(l) All of the computer software used by Xxxxxx to account for
the Receivables is set forth in Schedule 3.01(l) hereto. Xxxxxx, TRI and its
assigns have an enforceable right (whether pursuant to Section 2.05 hereunder or
by separate sublicense) to use all such computer software to the extent
necessary for administering the Receivables.
(m) Each Receivable represented to be an Eligible Receivable
in any Daily Report, Settlement Statement or other report or writing furnished
by Xxxxxx to TRI or its successors or assigns (including the Trustee and the
Investors) shall, in fact, satisfy the eligibility requirements set forth in the
definition of Eligible Receivable.
(n) Xxxxxx, both prior to and on the Effective Date, (i) is
not "insolvent" (as such term is defined in Section 101(31)(A) of the
Bankruptcy Code); (ii) is able to pay its debts as they mature; and (iii) does
not have unreasonably small capital for
-10-
305
the business in which it is engaged or for any business or transaction in which
it is about to engage.
(o) Xxxxxx is entering into the transactions contemplated by
the Program Documents in reliance on TRI's identity as a separate legal entity
from Xxxxxx and each of its Affiliates other than TRI, and acknowledges that TRI
and the other parties to the Program Documents are similarly entering into the
transactions contemplated by the other Program Documents in reliance on TRI's
identity as a separate legal entity from Xxxxxx and each such other Affiliate.
(p) Xxxxxx is not (i) an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as amended,
or (ii) a "holding company", or a "subsidiary company" or an "affiliate" of a
"holding company", within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
(q) None of the inventory, the sale of which has given or may
hereafter give rise to a Receivable, is subject to any Lien (other than
Permitted Liens).
(r) As of the Effective Date, Xxxxxx is not in default under
any material indenture, loan or credit agreement with respect to Indebtedness,
the effect of which is to cause, or to permit (or would, with the giving of
notice or the lapse of time or both, permit) the holder or holders of such
Indebtedness to cause, such Indebtedness to become due prior to its stated
maturity.
(s) Xxxxxx currently maintains, and shall continue to
maintain, such liability and casualty insurance as may be required by law and as
is necessary for the continued operation of its businesses as is customarily
maintained by companies engaged in similar businesses.
(t) Xxxxxx has a net worth not less than $10.0 million.
SECTION 3.02. Representations and Warranties of TRI. TRI
represents and warrants that as of the Effective Date and (except for
representations and warranties which relate to a specific date only) as of the
date of each Purchase:
(a) TRI is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, and is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where its ownership of property or the conduct of its business
requires such qualification, except where the failure to be so qualified
-11-
306
and to be in good standing could not reasonably be expected to have a Material
Adverse Effect.
(b) The execution, delivery and performance by TRI of this
Agreement, the other Program Documents to which it is a party and all other
agreements, instruments and documents delivered by TRI hereunder and thereunder,
and the transactions contemplated hereby and thereby, are within TRI's corporate
powers, and have been duly authorized by all necessary corporate action, and do
not and will not (i) result in or require the creation of any Lien upon or with
respect to any of its properties except as created in favor of the Trustee or
the Investors or (ii) violate, conflict with or result in a breach or default
under any of the following (which, in the case of clauses (B) and (C) below,
would not reasonably be expected to cause a Material Adverse Effect): (A) TRI's
certificate of incorporation or bylaws; (B) any law, rule or regulation
applicable to TRI or its property; (C) any contractual restriction contained in
any material indenture, loan or credit agreement, lease, mortgage, security
agreement, bond, note, or other agreement or instrument binding on TRI or to
which its property is subject; or (D) any order, writ, judgment, award,
injunction or decree binding on TRI or to which its property is subject. This
Agreement has been duly executed and delivered on behalf of TRI.
(c) No authorization or approval or other action by, and no
notice to or filing with, any government authority or regulatory body or other
Person is required for the due execution, delivery and performance by TRI of
this Agreement, any other Program Document to which it is a party or any other
agreement, document or instrument delivered hereunder or thereunder except for
the filing of UCC financing statements to evidence TRI's ownership interests in
the Receivables purchased hereunder and all proceeds thereof.
(d) This Agreement and each of the other Program Documents to
which TRI is a party constitutes the legal, valid and binding obligation of TRI
enforceable against TRI in accordance with its terms, except as such
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, including principles of commercial reasonableness,
good faith and fair dealing, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
SECTION 3.03. Representations and Warranties of Thermadyne.
Thermadyne represents and warrants that as of the Effective Date and (except for
representations and warranties which relate to a specific date only) as of the
date of each Purchase:
-12-
307
(a) Thermadyne is a limited liability company duly formed,
validly existing and in good standing under the laws of the state of its
formation and is duly qualified to do business, and is in good standing, in
every jurisdiction where its ownership of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified could not reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by Thermadyne of
this Agreement, the other Program Documents to which it is a party and all other
agreements, instruments and documents delivered by Thermadyne hereunder and
thereunder, and the transactions contemplated hereby and thereby, are within
Thermadyne's powers, have been duly authorized by all necessary action, and do
not and will not (i) result in or require the creation of any Lien upon or with
respect to any of its properties or (ii) violate, conflict with or result in a
breach or default under any of the following (which in the case of clause (B)
or (C) below would reasonably be expected to cause a Material Adverse Effect):
(A) Thermadyne's certificate of formation or limited liability company
regulations; (B) any law, rule or regulation applicable to Thermadyne or its
property; (C) any contractual restriction contained in any material indenture,
loan or credit agreement, lease, mortgage, security agreement, bond, note, or
other agreement or instrument binding on Thermadyne or to which its property is
subject; or (D) any order, writ, judgment, award, injunction or decree binding
on Thermadyne or to which its property is subject. No transaction contemplated
hereby requires compliance with any bulk sales act or similar law. The Program
Documents to which it is a party have been duly executed and delivered on behalf
of Thermadyne.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or other
Person is required for the due execution, delivery and performance by Thermadyne
of this Agreement, any other Program Document or any other agreement, document
or instrument delivered hereunder or thereunder, except for certain consents
which have been duly obtained.
(d) This Agreement and each of the other Program Documents to
which Thermadyne is a party constitutes the legal, valid and binding obligation
of Thermadyne enforceable against Thermadyne in accordance with its terms,
except as such 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 including principles of
commercial reasonableness, good faith and fair dealing, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
-13-
308
(e) No information, exhibit, financial statement, Record or
report furnished or to be furnished by Thermadyne in connection with the Program
Documents (including without limitation information in the Offering Memorandum)
is or shall be inaccurate in any material respect, or contains or shall contain
any material misstatement of fact, or omits or shall omit to state a material
fact or any fact necessary to make the statements contained therein not
materially misleading in light of the circumstances under which they were made.
(f) There are no actions, suits or proceedings pending, or to
the knowledge of Thermadyne threatened, against it or affecting it or its
property in any court, or before any arbitrator of any kind, or before or by any
governmental body, which (i) challenge the validity, legality or enforceability
of any of the Program Documents, or (ii) if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
(g) Thermadyne is entering into the transactions contemplated
by the Program Documents in reliance on TRI's identity as a separate legal
entity from Thermadyne and each of its Affiliates other than TRI, and
acknowledges that TRI and the other parties to the Program Documents are
similarly entering into the transactions contemplated by the other Program
Documents in reliance on TRI's identity as a separate legal entity from
Thermadyne and each such other Affiliate.
(h) Thermadyne is not (i) an "investment company" registered
or required to be registered under the Investment Company Act of 1940, as
amended, or (ii) a "holding company", or a "subsidiary company" or an
"affiliate" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(i) Thermadyne has delivered to TRI and its successors and
assigns (including the Trustee and the Investors) complete and correct copies of
(i) the audited consolidated financial statements of Thermadyne and Thermadyne's
Subsidiaries for its fiscal year ended December 31, 1998, (ii) the unaudited
consolidated balance sheet of Thermadyne and Thermadyne's Subsidiaries as of
September 30, 1999 and related consolidated statements of operations for the
three- and nine-month periods then ended; and the related statement of cash
flows for the nine-month period then ended. Such items have been prepared in
accordance with GAAP consistently applied (subject to normal year-end
adjustments in the case of the statements referred to in clause (ii) above),
and present fairly in all material respects Thermadyne's financial position as
of the dates indicated above and the results of its operations for the
respective periods then ended.
-14-
309
(j) As of the Effective Date, Thermadyne is not in default
under any material indenture, loan or credit agreement with respect to
Indebtedness, the effect of which is to cause, or to permit (or would, with the
giving of notice or the lapse of time or both, permit) the holder or holders of
such Indebtedness to cause, such Indebtedness to become due prior to its stated
maturity.
(k) Thermadyne currently maintains, and shall continue to
maintain, such liability and casualty insurance as may be required by law, as is
necessary for the continued operation of its businesses and as is customarily
maintained by companies engaged in similar businesses.
ARTICLE IV
GENERAL COVENANTS OF XXXXXX AND THERMADYNE
SECTION 4.01. Affirmative Covenants of Xxxxxx. From the date
hereof until the Collection Date, Xxxxxx will, unless TRI shall otherwise
consent in writing:
(a) Compliance with Laws, Etc. Comply in all respects with all
applicable laws, rules, regulations and orders with respect to it, its business
and properties and all Receivables and related Contracts included in the
Purchased Assets, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
(b) Preservation of Corporate Existence. Preserve and maintain
its legal existence, rights, franchises and privileges in the jurisdiction of
its formation, and qualify and remain qualified in good standing as a foreign
corporation in each jurisdiction where its ownership of property or the conduct
of its business requires such qualification, except where the failure to
preserve and maintain such existence, rights, franchises, privileges and
qualification could not reasonably be expected to have a Material Adverse
Effect; provided, that nothing in this Section 4.01(b) shall be deemed to
prohibit Xxxxxx or any Affiliate of Xxxxxx from merging with or consolidating
with or into, or from disposing of assets (other than the Purchased Assets) to
and from Xxxxxx or any Affiliate of Xxxxxx (other than TRI); provided, further,
that any survivor of any such merger or consolidation of Thermadyne, Xxxxxx or a
Seller (as applicable) must assume in writing the obligations of Thermadyne,
Xxxxxx or such Seller (as applicable) under the Program Documents.
(c) Performance and Compliance with Receivables and Contracts.
At its expense, timely and fully perform and comply
-15-
310
with all provisions, covenants and other promises required to be observed by it
under the Contracts related to the Receivables, except where the failure to so
perform and comply could not reasonably be expected to have a Material Adverse
Effect.
(d) Location of Records. Keep its principal place of business
and chief executive office at the address of Xxxxxx listed in Section 8.02 and
the offices where it keeps its Records, at the addresses of Xxxxxx referred to
on Schedule 3.01(h) or, upon thirty (30) days prior written notice to TRI and
the Trustee, at such other locations within the United States where all action
required by Section 5.05 shall have been taken and completed.
(e) Credit and Collection Policy. Comply in all material
respects with the Credit and Collection Policy attached hereto as Exhibit B (as
such Credit and Collection Policy may be amended in accordance with Section
403(c)) applicable to the Receivables and the related Contracts included in the
Purchased Assets.
(f) Collections. Instruct all Obligors to cause all
Collections relating to Receivables to be deposited directly to a Lockbox
Account or directly to the Collection Account. If Xxxxxx or any of its agents,
representatives or Subsidiaries shall receive any Collections, such recipient
will comply with the terms and provisions of Section 5.01(a) hereof.
(g) Audits. At any time and from time to time, following five
(5) Business Days notice from TRI, and during regular business hours, permit
TRI, or its agents or representatives or permitted assignees, (i) to have access
to the offices, properties and computer software of Xxxxxx and its Affiliates
for purposes of accessing all Records transferred hereunder and to otherwise
examine and make copies of and abstracts from all such Records and (ii) to
discuss matters relating to the Xxxxxx Transferred Assets or performance by
Xxxxxx and its Subsidiaries under the Program Documents with any of the officers
or employees of Xxxxxx or any of its agents, representatives or Subsidiaries
having knowledge of such matters, and (iii) to verify the validity, amount or
any other matter relating to any Receivable.
Xxxxxx further agrees that TRI or its assigns shall be
entitled to have certified public accountants or other auditors conduct a review
of their Records relating to the Purchased Assets in connection with any outside
review of such Purchased Assets as contemplated under Section 6.02 of the RPA
(and subject to the limits on the frequency of such reviews set forth therein);
provided, however, that unless a Liquidation Event has occurred and is
continuing, the scope of such review shall be
-16-
311
reasonable, taking into account market practice for similar transactions. Xxxxxx
agrees that the Trustee shall be permitted to substitute for and/or accompany
TRI on any such inspection or visit and to participate in any such discussion.
Xxxxxx further agrees to instruct its independent accountants to cooperate with
any reasonable request of TRI and the Trustee or their respective agents or
representatives, in connection with the performance of such accountants' routine
verification procedures with respect to the Receivables or the Related Security.
Without limiting the foregoing, Xxxxxx shall, in connection with any review of
TRI's Records by certified public accountants or other auditors pursuant to
Section 6.02 of the RPA, permit such accountants or auditors to examine the
books and Records of Xxxxxx and each Seller relating to the Purchased Assets and
the Program Documents.
(h) Delivery of Records. Upon the request of TRI, its agents,
representatives or successors and assigns (including the Trustee and the
Investors) deliver or cause to be delivered, as frequently as may be reasonably
requested, copies of all Records, including computer tapes generated by or on
behalf of Xxxxxx or any Affiliate of Xxxxxx, relating to the Purchased Assets
(including all Receivables and Collections included therein).
(i) Segregation of Collections. Use all reasonable efforts to
minimize the deposit of any funds other than Collections into any of the Lockbox
Accounts and, to the extent that any such funds are nevertheless deposited into
any of such Lockbox Accounts, promptly identify any such funds to TRI and the
Trustee.
(j) Books and Records. Maintain at all times complete Records
and accounts relating to the Purchased Assets (including all Receivables and
Collections included therein) in which timely entries are made in accordance
with GAAP. Such Records shall be marked to indicate the sales of all Receivables
and Related Security hereunder and shall include, without limitation, (a) all
payments received and all credits and extensions granted with respect to the
Receivables; (b) the return, rejection, repossessions, or stoppage in transit of
any merchandise the sale of which has given rise to a Receivable; and (c) any
other Dilution Factors.
(k) Identification of Eligible Receivables. (i) Establish and
maintain procedures as are necessary for determining whether each Receivable
qualifies as an Eligible Receivable and for identifying, on any date, the
aggregate Outstanding Balances of all Eligible Receivables; and (ii) notify TRI
and the Servicer in advance of Purchase in the Daily Report for such day if a
Receivable to be sold hereunder will, to Victor's knowledge, not be an Eligible
Receivable as of the date of Purchase.
-17-
312
(l) Notification of Noncomplying Receivables. Promptly notify
TRI and the Servicer of Victor's determination that any Receivables previously
sold by Xxxxxx hereunder were Noncomplying Receivables.
(m) Separate Identity. Take all actions required to maintain
TRI's status as a separate legal entity, including, without limitation, (i) not
holding TRI out to third parties as other than an entity with assets and
liabilities distinct from Xxxxxx and Victor's Affiliates; (ii) not holding
itself out to be responsible for the debts of TRI or, other than by reason of
owning capital stock of TRI, for any decisions or actions relating to the
business and affairs of TRI; (iii) taking such other actions as are reasonably
necessary on its part so that TRI's corporate procedures required by its
certificate of incorporation and bylaws are duly and validly taken; and (iv)
taking such other actions as may be reasonably necessary on its part so that TRI
is in compliance at all times with Section 5.01(l) and Section 6.09 of the RPA.
Xxxxxx will cause any financial statements consolidated with those of TRI to
contain a footnote to the effect that TRI's business consists of the purchase of
Receivables from Xxxxxx and that TRI is a separate corporate entity with its own
separate creditors who have relied on TRI's separate existence in extending such
credit.
(n) Taxes. File or cause to be filed, and cause each Person
with whom it shares consolidated tax liability to file, all Federal, state and
local tax returns which are required to be filed by it, except where the failure
to file such returns could not reasonably be expected to have a Material Adverse
Effect, and pay or cause to be paid all taxes shown to be due and payable on
such returns or on any assessments received by it, other than any taxes or
assessments, the validity of which are being contested in good faith by
appropriate proceedings and with respect to which Xxxxxx or such Person shall
have set aside adequate reserves on its books in accordance with GAAP and which
proceedings, if adversely determined, could not reasonably be expected to have a
Material Adverse Effect.
(o) Rights Against Sellers. Take such actions as TRI or its
successors and assigns (including the Trustee and the Investors) reasonably
request to enforce the First Tier RPSA or otherwise protect the interests of TRI
and its successors and assigns in connection therewith.
(p) Compliance with Opinion Assumptions. Take all other
actions reasonably necessary on its part to maintain the
-18-
313
accuracy of all factual assumptions relating to Xxxxxx set forth in the legal
opinions described in Section 4.01(xi) of the RPA.
(q) Consistent actions. Take no action that is inconsistent
with TRI's ownership interest in any Purchased Assets following the sale
thereof.
SECTION 4.02. General Reporting Requirements of Xxxxxx. From
the date hereof until the Collection Date, Xxxxxx shall, unless TRI shall
otherwise consent in writing, furnish to TRI:
(a) As soon as practicable and in no event later than two (2)
Business Days after the occurrence of each Liquidation Event or Unmatured
Liquidation Event, a statement of a senior financial or accounting officer of
Xxxxxx setting forth such Liquidation Event or Unmatured Liquidation Event and
the action which Xxxxxx proposes to take with respect thereto; and
(b) Promptly, from time to time, such other information,
documents, Records or reports respecting the Purchased Assets or the conditions
or operations, financial or otherwise, of Xxxxxx as TRI, the Trustee, or any of
their respective agents, representatives or permitted assignees, may from time
to time reasonably request, in order to protect the interests of TRI and its
assigns under or as contemplated by this Agreement and the other Program
Documents and to enable TRI and the Trustee to perform their respective
obligations under the other Program Documents.
SECTION 4.03. Negative Covenants of Xxxxxx. From the date
hereof until the Collection Date, Xxxxxx will not, without the written consent
of TRI:
(a) Sales, Liens, Etc. Against Receivables. Except as
otherwise provided herein, (1) sell, assign (by operation of law or otherwise)
or otherwise dispose of, or create or suffer to exist any Liens (except as
created in favor of TRI hereby or as created by TRI pursuant to any Program
Document and except for Permitted Liens) upon or with respect to any of the
Purchased Assets or any Lockbox Account; or (2) assign any right to receive
income in respect of such Purchased Assets or Lockbox Account. In the event that
Xxxxxx fails to keep any Purchased Assets free and clear of any Lien (except as
created in favor of TRI hereunder or as created by TRI pursuant to any other
Program Document and except for Permitted Liens), TRI may (without limiting its
other rights with respect to Victor's breach of its obligations hereunder) make
reasonable expenditures necessary to release such Lien. TRI shall be entitled to
indemnification for any such expenditures pursuant to the indemnification
provisions of Section 6.01, or TRI may, alternatively, deduct such
-19-
314
expenditures as an offset to other Purchase Price owed to Xxxxxx hereunder or as
a reduction to the Xxxxxx Purchase Price Note; provided, however, that in the
event of any dispute between Xxxxxx and the alleged holder of such Lien as to
the amount or validity of such Lien, such expenditure shall be made only after
consultation with Xxxxxx as to the status of such Lien and the action Xxxxxx or
any of its Consolidated Affiliates is taking or plans to take with respect
thereto.
(b) Extension or Amendment of Receivables. Except for the
adjustments made in its capacity as an agent of the Servicer pursuant to Section
5.03(a), extend, amend or otherwise modify the terms of any of Receivables
included in the Purchased Assets without the prior consent of TRI.
(c) Change in Credit and Collection Policy. (i) Make any
change in the Credit and Collection Policy which could reasonably be expected to
impair the collectibility of the Receivables or to result in a material delay in
the collection thereof, or (ii) except as otherwise permitted under Section
5.03, amend or modify the terms of a Receivable in a way that would materially
impair the collectibility thereof or cause a Receivable that would otherwise
become ineligible to remain an Eligible Receivable.
(d) Change in Payment Instructions to Obligors. (i) Make any
change in its instructions to Obligors directing payments other than to a
Lockbox Bank or the Collection Account, or (ii) voluntarily add or terminate any
bank as a Lockbox Bank unless, with respect to the addition of a Lockbox Bank,
TRI and the Trustee shall have first approved such bank as Lockbox Bank (which
approval shall not be unreasonably withheld, conditioned or delayed) and shall
have received (x) copies of Lockbox Agreements executed by each new Lockbox
Bank, TRI and the Trustee and (y) copies of all agreements and documents signed
by Xxxxxx, TRI, the Servicer and the Trustee or the respective Lockbox Bank with
respect to any new Lockbox Account.
(e) Change in Corporate Name. Make any change to its corporate
name or conduct any business under any trade names, fictitious names or assumed
names unless (i) TRI and the Trustee shall have received thirty (30) days prior
written notice of such name change or use and (ii) at least ten (10) days prior
to the effective date of any such name change or use, Xxxxxx shall have executed
and delivered to TRI such financing statements (Form UCC-1 and UCC-3) as TRI may
request or as are necessary to reflect such name change or use.
(f) Accounting of Purchases. Prepare any external financial
statements which shall account for the transactions contemplated hereby in any
manner other than the sale of the
-20-
315
Purchased Assets by Xxxxxx to TRI, or in any other respect account for or treat
the transactions contemplated hereby (including but not limited to accounting
and, where taxes are not consolidated, for tax reporting purposes) in any manner
other than as a sale of the Purchased Assets by Xxxxxx to TRI.
(g) First Tier RPSA. Agree to or suffer to exist any amendment
or modification of, or supplement to, the First Tier RPSA, or agree to any
waiver of any provision thereof, without the prior written consent of TRI and
the Trustee.
(h) Minimum Net Worth. Permit, at any time, its net worth to
be less than $10.0 million.
SECTION 4.04. Covenants of Thermadyne. From the date hereof
until the Collection Date, Thermadyne will, unless TRI shall otherwise consent
in writing:
(a) Compliance with Laws, Etc. Comply in all respects with all
applicable laws, rules, regulations and orders with respect to it, its business
and properties and all Receivables and related contracts included in the
Purchased Assets, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
(b) Preservation of Existence. Preserve and maintain its legal
existence, rights, franchises and privileges in the jurisdiction of its
formation, and qualify and remain qualified in good standing as a foreign
limited liability company in each jurisdiction where its ownership of property
or the conduct of its business requires such qualification except where the
failure to preserve and maintain such existence, rights, franchises, privileges
and qualification could not reasonably be expected to have a Material Adverse
Effect; provided, that nothing in this Section 4.04(b) shall be deemed to
prohibit Thermadyne or any Affiliate of Thermadyne from merging with or
consolidating with or into, or from disposing of assets (other than the
Purchased Assets) to and from Thermadyne or any Affiliate of Thermadyne (other
than TRI); provided, further, that any survivor of any such merger or
consolidation of Thermadyne must assume in writing the obligations of Thermadyne
under the Program Documents.
(c) Audits. At any time and from time to time, following five
(5) Business Days notice from TRI, and during regular business hours, permit
TRI, or its agents or representatives or permitted assignees, (i) to have access
to the offices, properties and computer software of Thermadyne and its
Affiliates for purposes of accessing all Records, if any, in respect of the
Purchased Assets and to otherwise examine and make copies of all abstracts from
such Records and (ii) to discuss matters relating to the Purchased Assets or
performance by
-21-
316
Thermadyne and its Subsidiaries under the Program Documents with any of the
officers or employees of Thermadyne or any of its agents, representatives or
Subsidiaries having knowledge of such matters, and (iii) to verify the validity,
amount or any other matter relating to any Receivable.
(d) Separate Identity. Take all actions required to maintain
TRI's status as a separate legal entity, including, without limitation, (i) not
holding TRI out to third parties as other than an entity with assets and
liabilities distinct from Thermadyne and Thermadyne's Affiliates; (ii) not
holding itself out to be responsible for the debts of TRI (except in connection
with the guarantee included in the Program Documents) for any decisions or
actions relating to the business and affairs of TRI; (iii) taking such other
actions as are reasonably necessary on its part so that TRI's corporate
procedures required by its certificate of incorporation and bylaws are duly and
validly taken; and (iv) taking such other actions as may be reasonably necessary
on its part so that TRI is in compliance at all times with Section 5.01(1) and
Section 6.09 of the RPA. Thermadyne will cause any financial statements
consolidated with those of TRI to contain a footnote to the effect that TRI's
business consists of the purchase of Receivables from Xxxxxx and Sellers and
that TRI is a separate corporate entity with its own separate creditors who have
relied on TRI's separate existence in extending such credit.
(e) Taxes. File or cause to be filed, and cause each Person
with whom it shares consolidated tax liability to file, all Federal, state and
local tax returns which are required to be filed by it, except where the failure
to file such returns could not reasonably be expected to have a Material Adverse
Effect, and pay or cause to be paid all taxes shown to be due and payable on
such returns or on any assessments received by it, other than any taxes or
assessments, the validity of which are being contested in good faith by
appropriate proceedings and with respect to which Thermadyne or such Person
shall have set aside adequate reserves on its books in accordance with GAAP and
which proceedings, if adversely determined, could not reasonably be expected to
have a Material Adverse Effect.
(f) Ownership of Sellers. Take all actions required on its
part so that, at all times through the Collection Date, Thermadyne continues to
own (directly or indirectly) at least eighty percent (80%) of the issued and
outstanding equity interests of Xxxxxx and each Seller; provided, that
Thermadyne shall notify the Trustee and the Rating Agency of any change of the
equity interests of Xxxxxx or a Seller.
(g) Accounting of Purchases. Not prepare any external
financial statements which shall account for the transactions
-22-
317
contemplated hereby in any manner other than the sale of the Purchased Assets by
Xxxxxx to TRI, or in any other respect account for or treat the transactions
contemplated hereby (including but not limited to accounting and, where taxes
are not consolidated, for tax reporting purposes) in any manner other than as a
sale of the Purchased Assets by Xxxxxx to TRI.
(h) Compliance with Opinion Assumptions. Take all other
actions reasonably necessary on its part to maintain the accuracy of all factual
assumptions relating to Thermadyne set forth in the legal opinions described in
Section 4.0l(xi) of the RPA.
(i) Consistent actions. Take no action that is inconsistent
with TRI's ownership interest in any Purchased Assets following the sale thereof
to TRI.
SECTION 4.05. General Reporting Requirements of Thermadyne.
From the date hereof until the Collection Date, Thermadyne shall, unless TRI
shall otherwise consent in writing, furnish to TRI:
(a) As soon as practicable and in no event later than two (2)
Business Days after the occurrence of each Liquidation Event or Unmatured
Liquidation Event, a statement of a senior financial or accounting officer of
Thermadyne setting forth such Liquidation Event or Unmatured Liquidation Event
and the action which Thermadyne proposes to take with respect thereto;
(b) As soon as available and in any event within one-hundred
five (105) days after the end of each fiscal year of Thermadyne and Thermadyne's
Subsidiaries, a copy of the annual statements of operations and cash flows of
Thermadyne for such fiscal year and the related balance sheet as at the end of
such fiscal year, setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year and prepared in accordance
with GAAP consistently applied (except for such changes in application which are
not objected to or taken exception to by Thermadyne's independent public
accountants and disclosed therein), reported on without a "going concern" or
like qualification or exception, or qualification arising out of the scope of
the audit, by Ernst & Young LLP or other independent certified public
accountants of recognized national standing selected by Thermadyne, together
with a report from Thermadyne's independent public accountants confirming that,
in conducting such audit, nothing came to their attention which caused them to
believe that Thermadyne was not in compliance with this Agreement insofar as it
relates to accounting matters, with the understanding that such audit was not
directed primarily toward obtaining knowledge of such noncompliance;
-23-
318
(c) As soon as available and in any event within sixty (60)
days after the end of the first three (3) fiscal quarters of each fiscal year of
Thermadyne, a copy of the unaudited statements of operations and cash flows for
Thermadyne for such fiscal quarter and for the period from the beginning of the
respective fiscal year to the end of such fiscal quarter and the related
unaudited balance sheet as at the end of such fiscal quarter; setting forth in
each case in comparative form the corresponding figures for the preceding fiscal
year and all of the foregoing to be prepared in accordance with GAAP
consistently applied (except for such changes in application which are approved
by Thermadyne's financial officer preparing such statements and disclosed
therein);
(d) Contemporaneously with the furnishing of a copy of the
annual and quarterly financial statements provided for in Sections 4.05(b) and
(c), a certificate in the form of Exhibit E dated the date of delivery and
signed by an appropriate officer of Thermadyne, which certificate shall state
that said financial statements fairly present the financial position and results
of operations of Thermadyne and were prepared in accordance with GAAP
consistently applied (except for such changes in application which are approved
by such officer and disclosed therein and, in the case of quarterly reports,
further subject to normal year-end adjustments) and that, to the best of such
officer's knowledge, no Liquidation Event or Unmatured Liquidation Event has
occurred during the applicable reporting period or, if there is any such event,
describing it and the steps, if any, taken or being taken to cure it.
ARTICLE V
ADMINISTRATION AND COLLECTION
SECTION 5.01. Collection of Receivables. (a) As of the
Effective Date, Xxxxxx and Sellers shall have transferred to TRI the exclusive
ownership and control of the Lockbox Accounts, and Xxxxxx hereby agrees to take,
and to cause Sellers to take, any further action reasonably necessary or that
TRI or the Trustee may reasonably request to effect or maintain the
effectiveness of any such transfer. From and after the Effective Date, Xxxxxx
and Sellers shall have no further right, title and/or interest in or control
over any of the Lockbox Accounts. Unless instructed otherwise by the Trustee
pursuant to its authority under the RPA, each Lockbox Bank shall be instructed
to remit, on a daily basis, via overnight or same day transfer, all amounts
deposited in its Lockbox Accounts to the Collection Account in accordance with
the terms of a Lockbox Agreement substantially in the form of Exhibit 8.01 to
the RPA. The Servicer shall advise TRI daily of the amount of Collections
-24-
319
received or to be received into the Collection Account on such day with respect
to the Receivables and TRI shall determine the amounts of such Collections
which, pursuant to the terms of the RPA, may be used by TRI to purchase new
Receivables hereunder. If Xxxxxx or any of their agents or representatives shall
at any time receive any cash, checks or other instruments which constitute
Collections, such recipient shall segregate such payment and hold such payment
in trust for and in a manner acceptable to TRI and shall, promptly after of any
such identification of payments aggregating at least $1,000.00, remit all such
cash, checks and instruments, duly endorsed without recourse or with duly
executed instruments of transfer without recourse, to a Lockbox Account or to
the Collection Account. TRI may notify any or all of the Obligors of the
ownership of the Purchased Assets by TRI and may direct any or all of the
Obligors of Receivables included in the Purchased Assets to pay all amounts
payable under any such Receivables directly to TRI or its designee (i) at any
time, with contemporaneous notice to Xxxxxx, after the occurrence and during the
continuance of a Liquidation Event or (ii) otherwise, at any time following five
(5) Business Days advance notice to Xxxxxx. At TRI's request and at Victor's
expense, Xxxxxx shall give notice of TRI's ownership of the Purchased Assets to
each Obligor thereunder and direct that payments be made directly to TRI or its
designee and assemble all Records of Xxxxxx, and make the same available to TRI
at a place selected by TRI or its successors and assigns (including the Trustee
and the Investors). Xxxxxx hereby authorizes TRI, and gives TRI its irrevocable
power of attorney, which authorization shall be coupled with an interest, to
take any and all reasonable steps in Victor's name and on behalf of Xxxxxx,
which steps are reasonably necessary or desirable, in the reasonable
determination of TRI, to collect all amounts due under the Purchased Assets,
including, without limitation, endorsing Victor's name on checks and other
instruments representing Collections and enforcing such Receivables and the
related Contracts.
(b) TRI shall, following notification that Collections of any
Receivable or other intangible owed to Xxxxxx or an Affiliate thereof, which is
not a Purchased Asset, have been deposited into the Lockbox Accounts, segregate
all such Collections. Promptly, after such misapplied Collections have been
reasonably identified to TRI, TRI shall turn over to Xxxxxx or such Affiliate,
as applicable, all such Collections less all reasonable and appropriate
out-of-pocket costs and expenses, if any, incurred by TRI in collecting such
Receivables.
SECTION 5.02. Designation of Servicer. The servicing,
administering and enforcement of collection of the Receivables shall be
conducted by the Person (the "Servicer") so designated from time to time in
accordance with this Section 5.02. Xxxxxx is hereby designated as, and hereby
agrees to perform the duties
-25-
320
and obligations of, the Servicer pursuant to the terms hereof, provided that TRI
or, subject to the terms set forth in the RPA, the Trustee may, upon the
occurrence of a Servicer Termination Event, give notice to Xxxxxx of the
designation of a new Servicer to succeed Xxxxxx and may thereafter designate any
Person to succeed such successor Servicer on the condition that any such Person
so designated shall agree to perform the duties and obligations of the Servicer
provided herein or in the RPA. In the event that TRI or the Trustee, as
applicable, is unable to designate a successor Servicer, the Trustee shall serve
as the Servicer until a successor Servicer is designated pursuant to Section
8.02(a) of the RPA. In addition to the foregoing, and subject to the terms set
forth in the RPA, until TRI or the Trustee gives notice to Xxxxxx of the
designation of a new Collection Agent, TRI hereby designates Xxxxxx as, and
Xxxxxx hereby agrees to perform the duties and obligations of, the Collection
Agent under the RPA. It is expressly understood that, as between Xxxxxx and TRI,
TRI will retain responsibility for withdrawing all amounts remitted to the
Lockbox Accounts and Xxxxxx shall have no such rights of withdrawal. TRI may at
any time designate any Person (including itself) to replace Xxxxxx as Servicer
or Collection Agent. For so long as Xxxxxx is the Servicer, Xxxxxx may delegate
certain servicing obligations to Sellers, but Xxxxxx shall not be relieved of
any of its obligations as Servicer as a result of such delegation.
SECTION 5.03. Duties of the Servicer; Daily Reports and
Settlement Statements; Servicer Fee. (a) The Servicer shall take or cause to be
taken all such actions as may be necessary or advisable to collect each
Receivable included in the Purchased Assets from time to time; provided,
however, that the Servicer shall not extend, modify or amend any Receivable
without TRI's prior consent, except that the Servicer may make adjustments to
reflect Dilution, Write-Offs, and the taking of Receivable Notes in accordance
with the terms of the Credit and Collection Policy. The Servicer shall exercise
the same care and apply the same policies with respect to the collection of the
Receivables that it would exercise and apply if it owned such Receivables, all
with reasonable care and diligence and otherwise in accordance with all
applicable laws, rules and regulations and in accordance with the applicable
Credit and Collection Policy. In addition, the Servicer shall, unless TRI
otherwise revokes such authority in writing, (a copy of which revocation shall
be delivered to the Trustee), enforce TRI's rights and interests, if any, in and
under the Receivables, the Related Security and the Contracts included in the
Purchased Assets. Notwithstanding anything to the contrary contained herein, (x)
TRI shall have the absolute and unlimited right to direct the Servicer (whether
the Servicer is Xxxxxx or otherwise) to commence or settle any legal action to
enforce collection of any Receivable owned by TRI or to foreclose upon or
repossess any Related Security owned by TRI; and (y) the
-26-
321
Servicer shall not, under any circumstances, be entitled to make Xxxxxx, any
Seller or TRI a party to any litigation without TRI's express prior written
consent. The Servicer shall adjust the Outstanding Balance of any Receivable to
reflect Dilution and Write-Offs in accordance with the Credit and Collection
Policy. The Servicer's authorization under this Agreement shall terminate on the
Collection Date. Notwithstanding any other provision of this Agreement, Victor's
obligation to act as Servicer and to act as Collection Agent under the RPA shall
terminate on the Collection Date.
(b) In addition to its other responsibilities hereunder, the
Servicer shall be responsible for preparing and delivering to TRI the Daily
Reports and Settlement Statements as more fully described below. On each
Business Day, the Servicer shall deliver to TRI, by no later than 2:00 p.m. (New
York City time) a Daily Report with respect to such date in the form of Exhibit
C-1 (if such Business Day occurs prior to the commencement of the Liquidation
Period) or Exhibit C-2 (if such Business Day occurs during the Liquidation
Period) hereto; provided, however, that the Servicer shall be able to designate
(by at least two (2) Business Days prior written notice to TRI and the Trustee)
up to five (5) non-consecutive Business Days during any calendar year on which
no Daily Report will be so delivered due to the fact that the Servicer will not
be open for business on such day; and provided, further that the Trustee shall
not apply, allocate or distribute funds pursuant to Section 8.07 or 8.08 of the
RPA on any such date when no Daily Report is delivered, except for distributions
of funds on any Settlement Date. With respect to each Collection Period, the
Servicer shall prepare and deliver, by the Reporting Date of the subsequent
month, a Settlement Statement, in the form of Exhibit D-l (if the Liquidation
Period has not yet commenced) or Exhibit D-2 hereto (if the Liquidation Period
has commenced), as applicable. Xxxxxx agrees to provide to the Servicer and/or
to the Collection Agent on a timely basis all information necessary for the
preparation and delivery of the foregoing reports.
(c) In consideration for Servicer's services as the Servicer
and as Collection Agent under the RPA, TRI shall pay to the Servicer a fee (the
"Servicer Fee") as set forth in this paragraph below. The Servicer hereby
acknowledges that, except for the Servicer Fee owed under this paragraph, the
Servicer's costs of performing its duties as Servicer hereunder and as
Collection Agent under the RPA (including the accounting costs and expenses for
reviews of the Xxxxxx Transferred Assets required under the RPA) shall not be
chargeable against TRI or its assigns. The Servicer Fee shall be paid monthly on
each Settlement Date prior to the Termination Date for the immediately preceding
Collection Period in an amount equal to the product of (i) the average
Outstanding Balances of all Receivables during
-27-
322
the prior Collection Period times (ii) two percent (2%) per annum calculated on
the basis of actual days elapsed during such Collection Period and a year of 365
or 366 days, as applicable. After the Termination Date, the Servicer Fee will be
paid as provided in Section 8.08 of the RPA. If Xxxxxx is replaced as the
Servicer prior to the end of a Collection Period, it shall be entitled to a pro
rata portion of the Servicer Fee for such period.
(d) The Servicer shall implement and maintain administrative
and operating procedures reasonably necessary for the performance of its
obligations hereunder (including, without limitation, an ability to recreate
Records in the event of the destruction of any originals thereof). The Servicer
shall also maintain at all times complete Records and accounts relating to the
Receivables, Collections and other Purchased Assets in which timely entries are
made in accordance with GAAP, as are necessary for the performance of its
obligations hereunder. Such Records and accounts shall, without limitation, be
adequate to permit the daily calculation of all information required to be
included in the Daily Report. Copies of such entries shall promptly be delivered
to TRI or its agents, representatives or permitted assignees upon request.
Victor's master computer records regarding the Receivables shall be marked (by
means of a general legend that will automatically appear at or near the
beginning of any computer generated list or print-out of the Receivables or
otherwise) to indicate the ownership by TRI of all Receivables and Related
Security sold hereunder and shall include, without limitation, (i) all payments
received and all credits and extensions granted with respect to the Receivables,
(ii) the return, rejection, repossessions, or stoppage in transit of any
merchandise the sale of which has given rise to a Receivable; (iii) any other
Dilution Factors; (iv) the taking of Receivable Notes; and (v) all Write-Offs.
At any time and from time to time, following prior notice of at least one (l)
Business Day from TRI, or its agents, representatives or permitted assignees,
and during regular business hours, the Servicer will permit TRI or such agent,
representative or permitted assignee (A) to have access to the Servicer's
offices, properties and computer software for purposes of examining and making
copies of and abstracts from all such Records and (B) to discuss matters
relating to the Purchased Assets with any of the officers, employees, agents or
representatives of the Servicer having knowledge of such matters.
SECTION 5.04. Responsibilities of Xxxxxx. Anything herein to
the contrary notwithstanding:
(a) Xxxxxx shall (i) perform all of its obligations under the
Contracts related to the Receivables sold by it hereunder to the same extent as
if such Receivables had not been
-28-
323
sold hereunder and the exercise by TRI of its rights hereunder shall not relieve
Xxxxxx from such obligations and (ii) pay when due any taxes relating to the
origination and sale of the Receivables and the other Xxxxxx Transferred Assets.
(b) TRI and its assignees shall have no obligation or
liability with respect to any Receivable or related Contract, nor shall TRI or
any such assignee be obligated to perform any of the obligations of Xxxxxx
thereunder and Xxxxxx agrees to indemnify and hold harmless TRI and its
assignees against and from any and all liabilities arising from or related to
any such obligation or liability; provided (i) that the foregoing
indemnification is not intended to provide recourse for failures of an Obligor
to make payment on a Receivable due to Credit Reasons, and (ii) that nothing in
this Section 5.04(b) shall require Xxxxxx to indemnify any Person for (A)
damages, losses, claims or liabilities resulting from such Person's gross
negligence or willful misconduct or actions of the Servicer (unless the Servicer
is TRI or an Affiliate of TRI), (B) for lost profits, consequential, special or
punitive damages or (C) any income taxes, franchise taxes or similar taxes. Any
Indemnified Amounts owed pursuant to this Section 5.04(b) shall be paid to the
Trustee within five (5) Business Days following the indemnified party's written
demand therefor, setting forth in reasonable detail the basis for such demand.
SECTION 5.05. Further Action Evidencing Purchases. (a) Xxxxxx
agrees that at any time and from time to time, at its expense, it will promptly
execute and deliver all further instruments and documents, and take all further
reasonable action that may be necessary to perfect, protect or more fully
evidence TRI's ownership of the Purchased Assets sold by Xxxxxx hereunder, or to
enable TRI to exercise or enforce any of its rights hereunder. Without limiting
the generality of the foregoing, Xxxxxx will (i) cause its master computer files
relating to the Receivables (by means of a general legend that will
automatically appear at or near the beginning of any computer generated list or
print-out of the Receivables or otherwise) to indicate that, unless otherwise
specifically identified on such list or print-out as a Receivable not so sold,
all Receivables included in such list or print-out and Related Security have
been sold to TRI in accordance with this Agreement and (ii) execute and file
such UCC financing or continuation statements, or amendments thereto or
assignments thereof as are necessary or appropriate or as TRI or any of its
agents, representatives or permitted assignees may reasonably request.
(b) In the event that Xxxxxx, within five (5) Business Days
after notice from TRI, fails to deliver to TRI one (l) or more UCC financing or
continuation statements, and amendments thereto and assignments thereof, that
TRI or any of
-29-
324
its agents, representatives or permitted assignees may reasonably determine to
be necessary to evidence or perfect TRI's ownership of all or any of the
Purchased Assets now existing or hereafter arising, then Xxxxxx hereby
authorizes TRI to file any such statements without the signature of Xxxxxx where
permitted by law. A carbon, photographic or other reproduction of this Agreement
or any financing statement covering the Purchased Assets or any part thereof,
shall be sufficient as a financing statement. If Xxxxxx fails to perform any of
its agreements or obligations under this Agreement, following expiration of any
applicable notice and cure period, TRI may (but shall not be required to)
perform, or cause performance of, such agreement or obligation, and the
reasonable expenses of TRI incurred in connection therewith shall be payable by
Xxxxxx upon TRI's written demand therefor (which demand shall itemize such
expenses in reasonable detail)
SECTION 5.06. Application of Collections. Any payment by an
Obligor in respect of any Indebtedness or other obligations owed by such Obligor
to a Seller, Xxxxxx or TRI shall, except as otherwise specified by such Obligor
or otherwise required by law, be applied as a Collection of any Receivable of
such Obligor purchased hereunder (in the order of the age by invoice date of
such Receivables, starting with the oldest such Receivable) to the extent of any
amounts then due and payable thereunder before being applied to (i) any
Receivable arising subsequent to the Termination Date which is not purchased
hereunder or (ii) any other Indebtedness of such Obligor to such Seller, Xxxxxx
or Sellers.
SECTION 5.07. No Recourse for Credit Problems. It is
understood and agreed that Xxxxxx shall not be liable for failure of an Obligor
to make a payment on a Receivable due to Credit Reasons.
ARTICLE VI
INDEMNIFICATION
SECTION 6.01. Indemnities by Xxxxxx. Without limiting any
other rights which TRI may have hereunder or under applicable law, but without
duplication, Xxxxxx hereby agrees to indemnify TRI and its permitted assignees
(including the Trustee and the Investors) from and against any and all damages,
losses, claims, liabilities and related costs and expenses, including reasonable
attorneys fees and disbursements awarded against or incurred by TRI or any of
its successors or assigns (including the Trustee and the Investors) relating to
or resulting from:
-30-
325
(i) reliance on any representation or warranty made by Xxxxxx
(or any of its officers) under or in connection with the Program Documents or in
connection with the preparation of any Daily Report, any Settlement Statement,
or reliance on any other information or report delivered by Xxxxxx pursuant to
the Program Documents, which shall have been false, incomplete or incorrect for
the purposes they were delivered in material any respect when made;
(ii) the failure by Xxxxxx to comply in all material respects
(A) with any term, provision or covenant contained in this Agreement, any other
Program Document to which it is a party or any agreement executed by Xxxxxx in
connection with this Agreement, any other Program Document or (B) with any
applicable law, rule or regulation with respect to any Receivable, the related
Contract or the Related Security, or the nonconformity of any Receivable, the
related Contract or the Related Security with any such applicable law, rule or
regulation;
(iii) the failure to vest and maintain vested in TRI or to
transfer to TRI, legal and equitable title to and ownership of the Receivables
and other Purchased Assets which are, or are purported to be, sold by Xxxxxx
hereunder, free and clear of any Lien (other than Permitted Liens and Liens
created in favor of TRI hereunder and Liens created under the other Program
Documents), including all amounts expended by TRI pursuant to Section 4.03(a);
(iv) 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 other applicable laws with respect to any Receivables
and other Purchased Assets which are, or are purported to be, sold by Xxxxxx,
whether at the time of any sale or contribution or at any subsequent time;
(v) the failure by Xxxxxx to be duly qualified to do business,
to be in good standing or to have filed appropriate fictitious or assumed name
registration documents in any jurisdiction where its ownership of property or
the conduct of its business require such qualification;
(vi) any dispute, claim, offset or defense of the Obligor
(other than discharge in bankruptcy or payment in full) to the payment of any
Receivable which is, or is purported to be, sold by Xxxxxx to TRI (including,
-31-
326
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 related to such
Receivable;
(vii) any products liability claim or personal injury or
property damage suit or other similar or related claim or action of
whatever sort arising out of or in connection with the goods and/or
merchandise or services that are the subject of any Receivable or
related Contract;
(viii) the failure of Xxxxxx to pay when due (A) any taxes or
charges imposed on Xxxxxx or (B) any sales taxes or other charges, in
either case arising from the transfer of the Xxxxxx Transferred Assets
(other than taxes on or measured by the net income of TRI or any of its
permitted assignees); and
(ix) the failure of Xxxxxx or any of its agents or
representatives to remit to TRI, Collections of the Purchased Assets
received by Xxxxxx or any such agent or representative.
It is expressly agreed and understood by the parties (i) that the foregoing
indemnification is not intended to provide recourse for failures of an Obligor
to make payment on a Receivable due to Credit Reasons and (ii) that nothing in
this Section 6.01 shall require Xxxxxx to indemnify any Person (A) for damages,
losses, claims or liabilities resulting from such Person's gross negligence or
willful misconduct or, the action or omission of the Servicer (if such Person is
the Servicer), provided that, notwithstanding the foregoing, in no event shall
Xxxxxx have any obligation to indemnify a Person for the gross negligence or
wilful misconduct of the Servicer, if the Servicer is not Xxxxxx or an Affiliate
of Xxxxxx, (B) for lost profits, consequential, special or punitive damages, or
(C) income taxes, franchise taxes or similar taxes. Any amounts subject to the
indemnification provisions of this Section 6.01 shall be paid by Xxxxxx to TRI
or its assignee, as the case may be, within five (5) Business Days following
TRI's written demand therefor, setting forth in reasonable detail the basis for
such demand. Notwithstanding anything to the contrary in this Agreement, for
purposes of this Section 6.01, the representations, warranties and covenants
contained in this Agreement that are qualified by a materiality standard shall
not be deemed to be limited to failures to perform or comply or to events,
circumstances, conditions or changes that gave rise to a Material Adverse
Effect.
-32-
327
SECTION 6.02. Indemnities by Thermadyne. Without limiting any
other rights which TRI may have hereunder or under applicable law, but without
duplication, Thermadyne hereby agrees to indemnify TRI and its permitted
assignees (including the Trustee and the Investors and each of their respective
officers, directors, employees and agents) from and against any and all damages,
losses, claims, liabilities and related costs and expenses, including reasonable
attorneys fees and disbursements awarded against or incurred by TRI or any of
its successors or assigns (including the Trustee and the Investors) relating to
or resulting from:
(i) any reliance by the Trustee, any failure by Xxxxxx, or any
dispute, claim or injury, arising in connection with matters described
in Section 6.01 (i) through (ix).
(ii) reliance on any representation or warranty made by
Thermadyne (or any of its officers) under or in connection with the
Program Documents, or reliance on any other information or report
delivered by Thermadyne pursuant to the Program Documents, which shall
have been false, incomplete or incorrect for the purposes they were
delivered in any material respect when made;
(iii) the failure by Thermadyne to comply in all material
respects with any term, provision or covenant contained in this
Agreement, any other Program Document to which it is a party or any
agreement executed by Thermadyne in connection with this Agreement or
any other Program Document;
(iv) the failure of Thermadyne to pay when due (A) any taxes
or charges imposed on Thermadyne or (B) any sales taxes or other
charges, in either case arising from the transfer of the Xxxxxx
Transferred Assets (other than taxes on or measured by the net income
of TRI or any of its permitted assignees); and
(v) the failure of Thermadyne or any of its agents or
representatives to remit to TRI, Collections of the Purchased Assets
received by Thermadyne or any such agent or representative; and
(vi) any acts or omissions or alleged acts or omission of
Xxxxxx with respect to its activities as Servicer or the Trustee
pursuant to the RPA, or the acceptance by the Trustee of the trust
created under the RPA, the issuance under the RPA of the Certificates,
or any Servicer Termination Event; provided that Thermadyne shall have
no obligation to
-33-
328
indemnify any Person for the Trustee's gross negligence or wilful
misconduct.
It is expressly agreed and understood by the parties (i) that the foregoing
indemnification is not intended to provide recourse for failures of an Obligor
to make payment on a Receivable due to Credit Reasons and (ii) that nothing in
this Section 6.02 shall require Thermadyne to indemnify any Person (A) for
damages, losses, claims or liabilities resulting from such Person's gross
negligence or willful misconduct or the action or omission of the Servicer (if
such Person is the Servicer); provided that notwithstanding the foregoing, in no
event shall Thermadyne have any obligation to indemnify any Person for the gross
negligence or wilful misconduct of the Servicer if the Servicer is not Xxxxxx or
an Affiliate of Xxxxxx, (B) for lost profits, consequential, special or punitive
damages, or (C) income taxes, franchise taxes or similar taxes. Any amounts
subject to the indemnification provisions of this Section 6.02 shall be paid by
Thermadyne to TRI or its assignee, as the case may be, within five (5) Business
Days following written demand therefor, setting forth in reasonable detail the
basis for such demand. Notwithstanding anything to the contrary in this
Agreement, for purposes of this Section 6.02, the representations, warranties
and covenants contained in this Agreement that are qualified by a materiality
standard shall not be deemed to be limited to failures to perform or comply or
to events, circumstances, conditions or changes that gave rise to a Material
Adverse Effect.
ARTICLE VII
THERMADYNE GUARANTY
SECTION 7.01. Guaranty. (a) Thermadyne unconditionally
guarantees the Subsidiary Obligations. This is a guaranty of payment when due
and not of collection. Upon failure by Sellers or Xxxxxx to fulfill the
Subsidiary Obligations, Thermadyne shall forthwith on demand pay any amount not
so paid at the place and in the manner specified in the applicable RPSA.
(b) Thermadyne's obligations under this Section 7.01 shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty, and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(1) any extension, renewal, settlement, compromise, waiver or
release in respect of any Subsidiary Obligation, by operation of law or
otherwise;
-34-
329
(2) any modification or amendment of or supplement to any
Program Document;
(3) any release, non-perfection or invalidity of any direct or
indirect security for any Subsidiary Obligation;
(4) any change in the corporate existence, structure or
ownership of any Seller or Xxxxxx, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Seller or
Xxxxxx or their respective assets or any resulting release or discharge
of any Subsidiary Obligation;
(5) the existence of any claim, set-off or other rights which
Thermadyne may have at any time against any Seller or Xxxxxx, or any
other corporation or person, whether in connection herewith or in
connection with any unrelated transactions, provided that nothing
herein shall prevent the assertion of any such claim by separate suit
or compulsory counterclaim;
(6) any invalidity or unenforceability relating to or against
any Seller or Xxxxxx for any reason of any Program Document, or any
provision of applicable law or regulation purporting to prohibit the
payment by any Seller or Xxxxxx of any amount payable by any Seller or
Xxxxxx under any Program Document; or
(7) any other act or omission to act or delay of any kind by
any Seller or the Servicer or any other corporation or person or any
other circumstance whatsoever which might, but for the provisions of
this paragraph, constitute a legal or equitable discharge of
Thermadyne's obligations hereunder.
(c) Thermadyne's obligations hereunder shall remain in full force and
effect until the Collection Date. If at any time any Subsidiary Obligation is
discharged, or any payment in respect thereof is rescinded or recovered, upon
the insolvency, bankruptcy or reorganization of any Seller or Xxxxxx or
otherwise, Thermadyne's obligations hereunder with respect to such payment shall
be reinstated as though such Subsidiary Obligation or payment had been due but
not made at such time.
(d) Thermadyne irrevocably waives acceptance hereof, presentment,
demand, protest and any notice not provided for herein, as well as any
requirement that at any time any action be taken by any corporation or person
against any Seller or Xxxxxx or any other corporation or person.
-35-
330
(e) Thermadyne irrevocably waives any claim or other rights which it
may now or hereafter acquire against any Seller or Xxxxxx that arise from the
existence, payment, performance or enforcement of Thermadyne's obligations under
this Section 7.01, including any right of subrogation, reimbursement,
exoneration or indemnification.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment to or waiver of
any provision of this Agreement nor consent to any departure by Xxxxxx or
Thermadyne therefrom, shall in any event be effective unless (i) the same shall
be in writing and signed by Xxxxxx, Thermadyne and TRI and (ii) other than
amendments or waivers for the purpose of curing any ambiguity, correcting any
provision hereof which may be inconsistent with any other provision hereof, or
adding any provision to make the provisions hereof consistent, or as otherwise
permitted under the RPA, such amendments or waivers shall have been consented to
by the Majority Investors as required under the RPA and the Rating Agency
Condition shall have been satisfied. Any such waiver, consent or approval shall
be effective only in the specific instance and for the specific purpose for
which given. No notice to or demand on Xxxxxx or Thermadyne in any case shall
entitle Xxxxxx or Thermadyne to any other or further notice or demand in the
same, similar or other circumstances.
SECTION 8.02. Notices. Etc. Any notice shall be conclusively
deemed to have been received by a party hereto and, subject to Section 8.04, to
be effective (i) if sent by first class mail, commercial delivery service or by
personal delivery, on the day on which delivered to such party at its address
set forth under its name on the signature pages hereof (or at such other address
as such party shall specify to the other parties hereto in writing); (ii) if
sent by telex, graphic scanning or other facsimile communications of the sending
party, when delivered by such equipment to the number set forth under its name
on the signature pages hereof or (iii) if sent by registered or certified mail,
on the day on which delivered to such party (or on which delivery is refused),
addressed to such party at its address set forth below or at such other address
as shall be designated by such party in a written notice to the other parties
hereto:
-36-
331
If to TRI, to:
Thermadyne Receivables, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
If to Xxxxxx, to:
Xxxxxx Equipment Company
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
If to Thermadyne:
Thermadyne Mfg. LLC
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
SECTION 8.03. No Waiver; Remedies. No waiver by TRI of any
breach or default of or by Xxxxxx (whether in its individual capacity or as
Servicer) or Thermadyne under this Agreement shall be deemed a waiver of any
other previous breach or default or any thereafter occurring. No failure on the
part of TRI 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, or any abandonment or discontinuation of steps to enforce such
right, 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 8.04. Binding Effect; Assignability. This Agreement
shall be binding upon and inure to the benefit of Xxxxxx, Thermadyne and TRI and
their respective successors and
-37-
332
permitted assigns. Neither Xxxxxx nor Thermadyne may assign any of their rights
and obligations hereunder or any interest herein or under the Xxxxxx Purchase
Price Note or any other Program Documents without the prior written consent of
TRI, the Trustee and the Required Investors. Xxxxxx and Thermadyne acknowledge
that TRI intends, (i) pursuant to the RPA, to sell to the Investors the
Certificates which will evidence Participation Interests in Victor's Transferred
Assets and in TRI's rights under the Program Documents, (ii) pursuant to the
Security Agreement, to pledge to the Trustee as collateral security all of its
residual interests in Victor's Transferred Assets and in the Program Documents.
Xxxxxx and Thermadyne consent to such sale and such pledge. Xxxxxx and
Thermadyne agree that, during the existence of a Liquidation Event or a Servicer
Termination Event, the Trustee (and any other permitted assignee of TRI or of
the Trustee) shall have the right, as the assignee of TRI (or the assignee of
such assignee) and subject to the terms of the Program Documents, to enforce the
Program Documents and to exercise directly all of TRI's rights and remedies
under the Program Documents (including any requirement in the RPA that the
Trustee be directed to take a particular action by the Required Investors).
Each of Xxxxxx and Thermadyne also agrees that (i) it shall simultaneously send
to the Trustee a copy of all notices, financial statements and certificates and
supporting material, required to be given by each of them to TRI hereunder and
(ii) upon its receipt of a notice of further assignment by TRI or an assignee of
TRI, each of Xxxxxx and Thermadyne shall send the assignee identified in such
notice a copy of all notices required to be given by each of them to TRI
hereunder. TRI, Xxxxxx and Thermadyne hereby acknowledge and agree that the
Trustee and the Investors have each relied upon the terms and provisions set
forth in this Agreement in entering into the RPA. 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 the Collection
Date; provided, however, that the provisions of Article VI and Section 8.06
shall be continuing and shall survive any termination of this Agreement.
SECTION 8.05. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER
OF PERSONAL SERVICE AND VENUE; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT
OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT
THAT THE VALIDITY OR PERFECTION OF THE INTERESTS OF TRI IN THE XXXXXX
TRANSFERRED ASSETS OR REMEDIES HEREUNDER OR THEREUNDER, IN RESPECT THEREOF, ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. EACH OF
VICTOR, THERMADYNE AND TRI HEREBY AGREES TO THE JURISDICTION OF ANY STATE
-38-
333
OR FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK, (AND ANY COURTS HEARING
APPEALS FROM SUCH STATE OR FEDERAL COURT), OVER ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THE PROGRAM DOCUMENTS, AND WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
REGISTERED MAIL DIRECTED TO SUCH PARTY AT THE ADDRESS SET FORTH ON THE SIGNATURE
PAGE HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS
AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAIL, POSTAGE PREPAID. EACH
OF XXXXXX, THERMADYNE AND TRI HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF
ANY ACTION INSTITUTED UNDER THE PROGRAM DOCUMENTS WITHIN THE STATE OF NEW YORK
AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY ANY COURT IN SUCH STATE. NOTHING IN THIS SECTION 8.05 SHALL
AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF TRI TO BRING ANY ACTION OR PROCEEDING
AGAINST XXXXXX, THERMADYNE OR THEIR PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION TO THE EXTENT NECESSARY FOR REALIZING ON ITS INTEREST IN ANY XXXXXX
TRANSFERRED ASSETS. EACH OF XXXXXX, THERMADYNE AND TRI HEREBY EXPRESSLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER OR REMEDY UNDER OR IN
CONNECTION WITH THE PROGRAM DOCUMENTS, AND AGREES THAT ANY SUCH ACTION SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY. THE TERMS AND PROVISIONS OF THIS
SECTION CONSTITUTE A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THE
PROGRAM DOCUMENTS.
SECTION 8.06. Costs, Expenses and Taxes. In addition to the
rights of indemnification under Article VI hereof, Xxxxxx agrees to pay on
demand all reasonable costs and expenses of TRI in connection with the sales of
Receivables hereunder, the negotiation, preparation, execution and delivery of
the Program Documents and all amendments with respect to this Agreement,
including the reasonable fees and out-of-pocket expenses of counsel for TRI with
respect thereto and with respect to advising TRI as to its rights and remedies
under this Agreement, and all reasonable costs and expenses (including
reasonable counsel fees and expenses) in connection with the enforcement of this
Agreement and the other Program Documents. In addition, Xxxxxx will pay any and
all stamp and similar taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing, recording or enforcement of
this Agreement or the other Program Documents, and hereby indemnifies and saves
TRI harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and fees.
SECTION 8.07. References to Xxxxxx. References to "Xxxxxx"
herein (including, without limitation, references in the
-39-
334
representations, covenants and indemnity sections hereof) are understood to be
references to Xxxxxx in its individual capacity and in its capacity as Servicer
unless the context of the particular reference is clearly intended to mean
either Xxxxxx in its individual capacity or as Servicer.
SECTION 8.08. Execution in Counterparts; Severability. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed (which execution
may be evidenced by a faxed copy followed by the original thereof) shall be
deemed to be an original and all of which when taken together shall constitute
one and the same agreement. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 8.09. Termination Date. The agreement of Xxxxxx to
sell Receivables hereunder and the agreement of TRI to purchase Receivables
shall in any event automatically terminate on the Termination Date. Xxxxxx shall
have the right, by giving notice to TRI and to the Trustee as described in
clause (vii) of the definition of Liquidation Period in Annex I hereto, to cause
the Termination Date to occur on the date so designated in such notice. Upon the
occurrence and during the continuance of any Liquidation Event, TRI shall have
the right, by giving notice to Xxxxxx and to the Trustee, to cause the
Termination Date to occur on the date so designated in such notice, provided
that TRI shall exercise such right in accordance with the instructions of the
Trustee prior to the Collection Date. Notwithstanding any such termination
described above, all other provisions of this Agreement shall remain in full
force and effect as provided in Section 7.04. On or after the Collection Date,
TRI will, at the request and expense of Xxxxxx, execute and deliver to Xxxxxx
such UCC termination statements and other documents as Xxxxxx may reasonably
request to evidence such termination.
SECTION 8.10. No Recourse. The obligations of each party
hereunder shall be solely its obligations and shall in all respects be
non-recourse to all of its officers, directors, controlling persons or
stockholders, and each party hereto acknowledges the same with respect to the
other parties and, to the fullest extent permitted by law, waives any such
recourse and any claim against any of such parties of the other arising
hereunder.
SECTION 8.11. No Proceedings. Each of Xxxxxx and Thermadyne
hereby agrees on behalf of itself and any holder of the Xxxxxx Purchase Price
Note, that it will not institute
-40-
335
against TRI any involuntary proceeding of the type referred to in the definition
of "Insolvency Event" in Annex I hereto so long as this Agreement remains in
full force and effect and for at least one (l) year and one day following the
Collection Date. Xxxxxx hereby agrees on behalf of itself and any holder of the
Xxxxxx Purchase Price Note, that it will not, in its capacity as a shareholder
of TRI, cause TRI to file any voluntary proceeding of the type referred to in
the definition of "Insolvency Event" in Annex I hereto except as otherwise
permitted under TRI's certificate of incorporation.
SECTION 8.12. Entire Agreement. This Agreement, together with
the other Program Documents, including the annexes, exhibits and schedules
hereto and thereto, 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 entire agreement among the parties hereto with respect to
the subject matter hereof, superseding all previous oral statements and other
writings with respect thereto.
SECTION 8.13. Survival of Agreement. All covenants,
agreements, representations and warranties made herein and in the certificates
delivered pursuant hereto shall survive the Effective Date and each Purchase
thereafter and shall continue in full force and effect until the Collection
Date.
[The Remainder of this Page Is Intentionally Left Blank]
-41-
336
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.
THERMADYNE RECEIVABLES, INC.
By: /s/ XXXXXXX X. XXXX
---------------------------------
Name: Xxxxxxx X. Xxxx
-------------------------------
Title: Vice President, Treasurer and
Assistant Secretary
------------------------------
XXXXXX EQUIPMENT COMPANY
By: /s/ XXXXXXX X. XXXX
---------------------------------
Name: Xxxxxxx X. Xxxx
-------------------------------
Title: Vice President, Treasurer and
Assistant Secretary
------------------------------
THERMADYNE MPG. LLC
By: /s/ XXXXXXX X. XXXX
---------------------------------
Name: Xxxxxxx X. Xxxx
-------------------------------
Title: Vice President, Treasurer and
Assistant Secretary
------------------------------
S-l
337
Annex 1--
Defined Terms
SEE TAB 1, ANNEX I
338
SCHEDULE 3.01(h)
TO
RECEIVABLES PURCHASE AND SALE AGREEMENT
AMONG CERTAIN ENTITIES AND XXXXXX EQUIPMENT COMPANY
LOCATION OF RECORDS
Thermadyne Mfg. LLC Thermadyne International Corp.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000 0000 Xxxxxxxx Xxxx
Xx. Xxxxx, XX 00000 Xxxxxxxx, Xxxxxxx X0X 0X0
(000) 000-0000 (000) 000-0000
Thermadyne Receivables, Inc. Xxxxxx Equipment Company
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000 0000 Xxxxxxx Xxxx
Xx. Xxxxx, XX 00000 Xxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Xxxxxx Gas Systems, Inc. Tweco Products, Inc.
0000 Xxxxx 00xx Xxxxxx 0000 Xxxx Xxxxx
Xxxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Thermal Arc, Inc. C&G Systems, Inc.
0000 Xxxxxxxxx Xxxxx 0000 Xxxxxxxx
Xxxx, Xxxx 00000 Xxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Thermal Dynamics Corporation Stoody Company
Industrial Park #2 0000 Xxxxxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000 Xxxxxxx Xxxxx, XX 00000
(000) 000-0000 (000) 000-0000
339
SCHEDULE 3.01(i)
TO
RECEIVABLES PURCHASE AND SALE AGREEMENT
AMONG CERTAIN ENTITIES AND XXXXXX EQUIPMENT COMPANY
NAME AND ADDRESS OF LOCKBOX BANK
--------------------------------------------------------------------------------
Contact Address: Wire Instructions Address:
--------------------------------------------------------------------------------
Bank of America, N.A. Bank of America, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx 0000 Xxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx ABA Routing # 000000000
(000) 000-0000
--------------------------------------------------------------------------------
ACCOUNTS:
Thermadyne Receivables Securitization Concentration:
Thermadyne Industries, Inc. Account 3750942376
Lockboxes:
Thermal Dynamics
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Thermadyne International
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Xxxxxx Equipment Company
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Tweco Products
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Stoody Company
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Schedule 3.01(i)-Page 1 of 2
340
Thermadyne Consolidated
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Xxxxxx Gas Systems
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Thermal Arc, Inc.
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
C&G Systems
X.X. Xxx 000000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Zero Balance Accounts:
Xxxxxx Equipment Account 3750942327
Thermadyne International Account 3750972207
Schedule 3.01(i)-Page 2 of 2
341
SCHEDULE 3.01(j)
TO
RECEIVABLES PURCHASE AND SALE AGREEMENT
AMONG XXXXXX EQUIPMENT COMPANY, THERMADYNE RECEIVABLES,
INC. AND THERMADYNE MFG. LLC, AS GUARANTOR
TRADENAMES, FICTITIOUS NAMES, ASSUMED NAMES
Xxxxxx Equipment Company
Assumed Name:
Wingaersheek Division
342
SCHEDULE 3.01(l)
TO
RECEIVABLES PURCHASE AND SALE AGREEMENT
AMONG XXXXXX EQUIPMENT COMPANY, THERMADYNE RECEIVABLES,
INC. AND THERMADYNE MFG. LLC, AS GUARANTOR
LIST OF LICENSED, INTERNALLY DEVELOPED
OR UTILIZED SOFTWARE
1. Tweco Products, Inc.
License Agreement with XX Xxxxxxx
2. Thermal Dynamics Corporation
License Agreement with XX Xxxxxxx
3. Thermadyne International Corp.
License Agreement with XX Xxxxxxx
4. Stoody Company
License Agreement with XX Xxxxxxx
5. Xxxxxx Gas Systems, Inc.
Madic-Computfact Corporation Software (now owned by company)
6. Thermal Arc, Inc.
License Agreement with XX Xxxxxxx
7. C&G Systems, Inc.
License Agreement with XX Xxxxxxx
343
EXHIBIT A
FORM OF XXXXXX PURCHASE PRICE NOTE
344
Exhibit A
Form of Xxxxxx
Purchase Price Note
FORM OF
XXXXXX PURCHASE PRICE NOTE
2000
-----------,
FOR VALUE RECEIVED, the undersigned, [NAME OF PURCHASER], a [STATE OF
INCORPORATION] corporation ("[NAME]"), promises to pay to XXXXXX EQUIPMENT
COMPANY, a Delaware corporation ("Xxxxxx" and together with its successors and
assigns, the "Holder"), on the terms and subject to the conditions set forth in
this promissory note (this "Note") and in that certain Receivables Purchase and
Sale Agreement of even date herewith (the "RPSA") among Xxxxxx, as seller, [NAME
OF PURCHASER], as purchaser, and Thermadyne Mfg. LLC, as guarantor, an amount
equal to the aggregate unpaid principal amount of all borrowings deemed to be
made by [NAME OF PURCHASER] from Xxxxxx pursuant to Section 2.02(e) of the RPSA.
Such amount, as shown in the records of the Servicer, will be rebuttable
presumptive evidence of the principal amount and interest owing under this Note.
1. RPSA. This Note is the Xxxxxx Purchase Price Note described, and is
subject to the terms and conditions set forth, in the RPSA. Reference is hereby
made to the RPSA for a statement of certain other rights and obligations of
[NAME OF PURCHASER] and Xxxxxx.
2. Rules of Construction; Definitions. Certain rules of construction
governing the interpretation of this Note are set forth in Annex I to the RPSA
and, except as otherwise specifically provided herein, capitalized terms used
but not defined herein have the meanings ascribed thereto in Annex I to the
RPSA. In addition, as used herein, the following terms have the following
meanings:
"Bankruptcy Proceedings" means any dissolution, winding up,
liquidation, readjustment, reorganization or other
345
Exhibit A
Form of Xxxxxx
Purchase Price Note
similar event relating to [NAME OF PURCHASER], whether voluntary or
involuntary, partial or complete, and whether in bankruptcy,
insolvency, receivership or other similar proceedings, or upon an
assignment for the benefit of creditors, or any other marshalling of
the assets and liabilities of [NAME OF PURCHASER] or any sale of all
or substantially all of the assets of [NAME OF PURCHASER]; provided,
however, that none of (i) the commencement of the Liquidation Period,
(ii) the allocation and distribution of Collections and other amounts
during the Liquidation Period in accordance with the terms of the RPA
and (iii) the liquidation, dissolution and winding up of [NAME OF
PURCHASER] after the termination of the RPA shall constitute a
"Bankruptcy Proceeding," so long as no bankruptcy, insolvency,
receivership or other similar proceedings shall have been commenced by
or against [NAME OF PURCHASER] and be continuing.
"Final Maturity Date" means the date occurring one year and one
day after the Scheduled Initial Principal Payment Date.
"Highest Lawful Rate" has the meaning set forth in paragraph 9
hereof.
"Junior Liabilities" means all obligations of [NAME OF PURCHASER]
to the Holder under this Note.
"Reference Rate" means, with respect to any day occurring in a
Collection Period, the rate of interest publicly announced from time
to time by ABN AMRO Incorporated as its "prime rate" and in effect on
the first day of such Collection Period, as determined by the
Servicer.
"Senior Interests" means all obligations of [NAME OF PURCHASER]
to the Trustee and/or holders of Certificates, howsoever created,
arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing,
346
Exhibit A
Form of Xxxxxx
Purchase Price Note
or due or to become due, including without limitation interest or
other amounts due or to become due after an Event of Bankruptcy.
"Senior Parties" means the holders of the Senior Interests.
"Subordination Provisions" means, collectively, the provisions of
Paragraph 7 hereof.
"[NAME OF PURCHASER] Person" means [NAME OF PURCHASER] and all of
its affiliates.
3. Interest. Subject to the Subordination Provisions, [NAME OF
PURCHASER] promises to pay interest on the aggregate unpaid principal amount of
this Note outstanding on each day during a Collection Period at an adjustable
rate per annum equal to the LIBO Rate in effect on the second Business Day in
London prior to the commencement of such Collection Period.
4. Interest Payment Dates.
(a) Subject to the Subordination Provisions, [NAME OF PURCHASER]
shall pay accrued interest on this Note on each Settlement Date and on
the Final Maturity Date. [NAME OF PURCHASER] also shall pay accrued
interest on the principal amount of each prepayment hereof on the date
such prepayment is made.
(b) Notwithstanding the provisions of paragraph 4(a), in the
event that on the date an interest payment is due hereunder the amount
of funds available therefor pursuant to Section 8.07 or 8.08 of the
RPA is insufficient to pay any amount due pursuant to paragraph 4(a),
then interest shall be payable only to the extent that funds are
available therefor in accordance with Section 8.07 and 8.08 of the
RPA. All interest on this Note that is not paid when due pursuant to
this paragraph 4(b) shall be automatically deferred, shall constitute
a portion of the principal
347
Exhibit A
Form of Xxxxxx
Purchase Price Note
balance of this Note and shall be payable on the next date on which an
interest payment on this Note is due and on which funds are available
therefor pursuant to Section 8.07 or 8.08 of the RPA, and all such
unpaid interest shall accrue interest at the LIBO Rate until paid in
full.
5. Basis of Computation. Interest accrued hereunder shall be computed
for the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Subject to the Subordination Provisions,
any unpaid principal of this Note shall only become due and payable on the Final
Maturity Date. Subject to the Subordination Provisions, the principal amount of
and accrued interest on this Note may be prepaid on any Business Day without
premium or penalty; provided, that no prepayment shall be made by [NAME OF
PURCHASER] to the extent that such prepayment would result in a default in the
payment of any other amount required to be paid by [NAME OF PURCHASER] under any
Program Document.
7. Subordination Provisions. [NAME OF PURCHASER] covenants and agrees,
and each Holder, by its acceptance of this Note, likewise covenants and agrees,
that the payment of all Junior Liabilities is hereby expressly subordinated in
right of payment to the payment and performance of the Senior Interests to the
extent and in the manner set forth in this paragraph 7:
(a) In the event of any Bankruptcy Proceeding, the Senior
Interests shall first be paid and performed in full and in cash before
the Holder shall be entitled to receive and to retain any payment or
distribution in respect of the Junior Liabilities. In order to
implement the foregoing: (i) following the commencement of a
Bankruptcy Proceeding, all payments and distributions of any kind or
character in respect of the Junior Liabilities to which the Holder
would be entitled except for this clause (a) shall be made directly to
the Senior Parties, and (ii) if a Bankruptcy Proceeding has been
commenced, the Holder shall promptly file a claim or claims, in the
form required in any
348
Exhibit A
Form of Xxxxxx
Purchase Price Note
Bankruptcy Proceedings, for the full outstanding amount of
the Junior Liabilities, and shall use commercially
reasonable efforts to cause said claim or claims to be
approved and all payments and other distributions in respect
thereof to be made directly to the Senior Parties until the
Senior Interests shall have been paid and performed in full
and in cash.
(b) After the commencement of any Bankruptcy
Proceeding, in the event that the Holder receives any
payment or other distribution of any kind or character from
[NAME OF PURCHASER] or from any other source whatsoever, in
payment of the Junior Liabilities, such payment or other
distribution shall be received in trust for the Senior
Parties and shall be turned over by the Holder to the Senior
Parties forthwith.
(c) The Holder shall not be subrogated to the rights
of the Senior Parties to receive payments or distributions
from [NAME OF PURCHASER] that are applicable to the Senior
Interests until the Senior Liabilities are paid in full.
(d) These Subordination Provisions are intended
solely for the purpose of defining the relative rights of
the Holder, on the one hand, and the Senior Parties on the
other hand. Nothing contained in these Subordination
Provisions or elsewhere in this Note is intended to or shall
impair, as between [NAME OF PURCHASER], its creditors (other
than the Senior Parties) and the Holder, [NAME OF
PURCHASER]'s obligation, which is unconditional and
absolute, to pay the Junior Liabilities as and when the same
shall become due and payable in accordance with the terms
hereof and of the RPSA or to affect the relative rights of
the Holder and creditors of [NAME OF PURCHASER] (other than
the Senior Parties).
(e) The Holder shall not, until the Senior Interests
have been finally paid and performed in full and in cash,
(i) cancel, waive, forgive, transfer or assign, or commence
legal proceedings to enforce or collect, or subordinate to
349
Exhibit A
Form of Xxxxxx
Purchase Price Note
any obligation of [NAME OF PURCHASER] (other than to the
Senior Interests), howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, or now
or hereafter existing, or due or to become due, the Junior
Liabilities or any rights in respect hereof or (ii) convert
the Junior Liabilities into an equity interest in [NAME OF
PURCHASER], unless, in the case of each of clauses (i) and
(ii) above, the Holder shall have received the prior written
consent of the Senior Parties in each case.
(f) The Holder shall not, without the advance
written consent of the Senior Parties, commence, or join
with any other Person in commencing, any Bankruptcy
Proceedings with respect to [NAME OF PURCHASER] until at
least one year and one day shall have passed after the
Senior Interests shall have been finally paid and performed
in full and in cash; provided, however, that the Holder
shall at all times have the right to file any claim in or
otherwise take any action with respect to any insolvency
proceeding instituted against [NAME OF PURCHASER] by any
Person other than the Holder, [NAME OF PURCHASER] or any
other [NAME OF PURCHASER] Person (provided that no such
action may be taken by the Holder until such proceeding has
continued undismissed, unstayed and in effect for a period
of 10 days).
(g) If, at any time, any payment (in whole or in
part) made with respect to any Senior Interest is rescinded
or must be restored or returned by a Holder (whether in
connection with any Bankruptcy Proceedings or otherwise),
these Subordination Provisions shall continue to be
effective or shall be reinstated, as the case may be, as
though such payment had not been made.
(h) Each of the Senior Parties may, from time to
time, in its sole discretion, without notice to the Holder,
and without waiving any of its rights under these
Subordination Provisions, take any or all of the following
actions: (i) retain or obtain an interest in any property to
secure any of the Senior Interests; (ii) retain or obtain
the primary
350
Exhibit A
Form of Xxxxxx
Purchase Price Note
or secondary obligations of any other obligor or obligors
with respect to any of the Senior Interests; (iii) extend or
renew for one or more periods (whether or not longer than
the original period), alter, increase or exchange any of
the Senior Interests, or release or compromise any
obligation of any nature with respect to any of the Senior
Interests; (iv) amend, supplement, amend and restate, or
otherwise modify any Program Document to which it is a
party; 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 Interests, 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.
(i) The Holder hereby waives: (i) notice of
acceptance of these Subordination Provisions by any of the
Senior Parties; (ii) notice of the existence, creation,
non-payment or non-performance of all or any of the Senior
Interests; and (iii) all diligence in enforcement,
collection or protection of, or realization upon, the Senior
Interests, or any thereof, or any security therefor.
351
Exhibit A
Form of Xxxxxx
Purchase Price Note
(j) These Subordination Provisions constitute a
continuing offer from [NAME OF PURCHASER] to all Persons who
become the holders of, or who continue to hold, Senior
Interests; and these Subordination Provisions are made for
the benefit of the Senior Parties, and the Trustee may
proceed to enforce such provisions on behalf of each of such
Persons.
8. General. No failure or delay on the part of the Holder in
exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power
or right preclude any other or further exercise thereof or the
exercise of any other power or right. No amendment, modification or
waiver of, or consent with respect to, any provision of this Note
shall in any event be effective unless (a) the same shall be in
writing and signed and delivered by [NAME OF PURCHASER] and Xxxxxx,
and (b) all consents required for such actions under the Program
Documents shall have been received by the appropriate Persons.
9. Limitation on Interest. Notwithstanding anything in this
Note to the contrary, [NAME OF PURCHASER] shall never be required to
pay unearned interest on any amount outstanding hereunder, and shall
never be required to pay interest on the principal amount outstanding
hereunder, at a rate in excess of the maximum nonusurious interest
rate that may be contracted for, charged or received under applicable
federal or state law (such maximum rate being herein called the
"Highest Lawful Rate"). If the effective rate of interest which
would otherwise be payable under this Note would exceed the Highest
Lawful Rate, or the Holder shall receive any unearned interest or
shall receive monies that are deemed to constitute interest which
would increase the effective rate of interest payable by [NAME OF
PURCHASER] under this Note to a rate in excess of the Highest Lawful
Rate, then (a) the amount of interest which would otherwise be
payable by [NAME OF PURCHASER] under this Note shall be reduced to
the amount allowed by applicable law, and (b) any unearned interest
paid by [NAME OF PURCHASER] or any interest
352
Exhibit A
Form of Xxxxxx
Purchase Price Note
paid by [NAME OF PURCHASER] in excess of the Highest Lawful Rate shall
be refunded to [NAME OF PURCHASER]. Without limitation of the
foregoing, all calculations of the rate of interest contracted for,
charged or received by the Holder under this Note that are made for the
purpose of determining whether such rate exceeds the Highest Lawful Rate
shall be made, to the extent permitted by applicable usury laws (now or
hereafter enacted), by amortizing, prorating and spreading in equal
parts during the actual period during which any amount has been
outstanding hereunder all interest at any time contracted for, charged
or received by Xxxxxx in connection herewith. If at any time and from
time to time (i) the amount of interest payable to the Holder on any
date shall be computed at the Highest Lawful Rate pursuant to the
provisions of the foregoing sentence, and (ii) in respect of any
subsequent interest computation period the amount of interest otherwise
payable to the Holder would be less than the amount of interest payable
to the Holder computed at the Highest Lawful Rate, then the amount of
interest payable to the Holder in respect of such subsequent interest
computation period shall continue to be computed at the Highest Lawful
Rate until the total amount of interest payable to the Holder shall
equal the total amount of interest which would have been payable to the
Holder if the total amount of interest had been computed without giving
effect to the provisions of the foregoing sentence.
10. No Negotiation. Subject to Section 12, this Note is not
negotiable.
11. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
12. Security Interest. Xxxxxx may grant a security interest
in or otherwise pledge this Note as security (and endorse this Note to
the order of such secured party or pledgee), and any Person to whom such
security interest is granted or to whom this Note is pledged shall be
bound by, and for all purposes
353
Exhibit A
Form of Xxxxxx
Purchase Price Note
takes this Note subject to, the restrictions and other provisions
(including the Subordination Provisions) set forth herein.
13. Captions. Paragraph captions used in this Note are
provided solely for convenience of reference and shall not affect the
meaning or interpretation of any provision of this Note.
354
Exhibit A
Form of Xxxxxx
Purchase Price Note
IN WITNESS WHEREOF, [NAME OF PURCHASER] has caused this Note to
be signed and delivered by its duly authorized officer as of the date first
above written.
[NAME OF PURCHASER)
By:
--------------------------------
Name:
Title:
355
EXHIBIT B
CREDIT AND COLLECTION POLICY
356
EXHIBIT B
CREDIT POLICIES AND PAYMENT TERMS
OVERVIEW
Thermadyne's credit and collection function is decentralized. Thermadyne relies
on each division to administer the established credit policies and collection
procedures. The policies depend on the careful establishment of appropriate
credit in compliance with documented policy and detailed monitoring of customer
account activity. Credit functions, including establishment of credit lines
maintenance of customer records and cash collection and application, are
controlled by the credit departments of each of the divisions.
Each credit department has a credit manager overseeing credit, collection and
cash application. The credit personnel monitor the orders placed on credit hold
as well as any delinquent accounts on a daily basis. Corrective action is taken
by credit personnel as potential problems are identified in order to minimize
losses while maintaining good working relationships with customers.
CREDIT DEPARTMENT PERSONNEL
Each division maintains a credit manager who, in conjunction with the division
controller, is responsible for implementing established credit policies,
evaluating the credit worthiness of accounts, determining credit action in
unusual circumstances and monitoring the financial status of key accounts.
Additionally, Thermadyne supports a strong working relationship among the
divisional credit managers to maintain consistency across divisions.
DETERMINATION OF CREDIT LIMITS
Each potential customer is required to complete a credit application. The
application requires basic information such as the potential customer's correct
name, length of time in business, principals, banking arrangements, trade
references and the amount of the requested credit line.
Credit lines are determined after an investigation of the customer's stability,
financial strength, credit reputation and expected purchases. A credit analysis
will typically include Dun & Bradstreet reports as well as supplier references,
bank references and any relevant financial statements.
Credit limit authority levels vary for each division, but conform to the
following established corporate financial policy:
$ 0 - X Credit Manager/Local Plant Controller
X - $100,000 Local V.P. Operations or Director of Operations
$100,000 - Y Executive V.P. Operations/Division President
Y - Up V.P.-C.F.O. and President
"X" to be determined by the Local V.P. Operations
"Y" to be determined by the President, but in no cases more than $250,000
357
POST-APPROVAL PROCEDURES
Credit personnel monitor delinquent accounts as well as daily orders for
accounts placed on credit hold. This procedure allows credit personnel to
manually review such accounts and, if necessary, follow up with the customer. In
general, credit personnel check the system several times each day for held
orders and make a decision on each such order within one day.
PAYMENT TERMS
Company policy for payment is generally net 30 days, however, other standard
terms exist, particularly in international markets. In cases where terms are
extended beyond standard terms to customers, the following approvals must be
obtained:
$ 0 - $ 50,000 Credit Manager/V.P. Operations/Director of Operations
$ 50,001 - $100,000 Executive V.P./Division President
$100,001 - Up V.P.-C.F.O./President
DELINQUENCIES AND COLLECTION POLICIES
Collection efforts are predicated on the financial worth of the obligor, terms
of sale, past payment history and the outstanding dollar amount. Contact is
first made by either telephone, fax or xxxxxxx letter, and occurs as early as
immediately upon shipment, but in no case later than 31 days past due. Follow-up
calls are made as well as correspondence by mail or fax should the account
remain delinquent. Sales people are also routinely notified of their respective
past due accounts for further follow up and in order to prepare them for
face-to-face situations with the customer. Delinquent accounts may be placed on
credit hold so that each subsequent order can be individually analyzed. When all
other means have been exhausted, accounts are forwarded to an outside collection
agency.
WRITE-OFF POLICIES
Accounts will be written off when credit and financial management make the
determination that all collection efforts have been exhausted. Policies require
that standard forms be filled out with respect to any write-off and, depending
upon the amount of the write-off, forwarded to the Credit Manager, Controller,
VP General Operations Manager, or CFO for approval.
DISPUTES
Disputes with customers generally arise over quality problems, but can include
allowances, pricing errors, shipping errors, freight errors, invalid
substitutions, shortages and returns. Some customers choose to withhold payment
of invoices when problems arise; however most will deduct the disputed amount
from a payment.
Disputes are generally researched by credit personnel who work with customer
service and sales representatives to assess its legitimacy. If a dispute is
justified, a credit is issued and action is taken to correct the situation.
358
CREDIT FILE MAINTENANCE AND REVIEW
Credit files are established and maintained for each customer and are the
responsibility of the credit manager. The information accumulated within each
file will vary depending on the amount of the line of credit and the financial
strength of the obligor. Credit files are maintained on each customer and
routinely include the signed credit application, a Dun & Bradstreet Report and
references. Customer files are reviewed regularly as activity and balances
require.
359
EXHIBIT C-1
Form of Daily Report (Pre-Liquidation Period)
360
THERMADYNE RECEIVABLES, INC. DAILY REPORT
------------------------------------------------------------------------------------------------------------------------------------
Daily Report Date........... 30-Sep-99 Preceding Daily Report Date............ 29-Sep-99
Settlement Date (Y/N)....... N NEW DAY Prepared by: Xxx Xxxx.................. Xxx Xxxx
Report Prepared........................ 02/22/2000 16:22
------------------------------------------------------------------------------------------------------------------------------------
BEGINNING DAILY RECEIVABLES BALANCE......... 45,762,252.93 <46,262,694.91>
Plus: Gross Invoices/New Receivables........ 1,531,098.08 Less: Collections (applied)........... 969,917.14
Sales/Cash Discounts............ 135.00
Credit Memos.................... 44,184.00
Plus: Other Adjustments..................... (16,236.96) Volume Discounts................ 0.00
Misc. Credits................... 183.00
------------------------------------------------------------------------------------------------------------------------------------
EXCESS BALANCES
SPECIFIED OBLIGOR AND ITS Obligor % Limit on
CONSOLIDATED AFFILIATES Eligible Balance Eligible Bal.
------------------------- ---------------- -------------
1 Airgas 4,237,263.76 ....... .............................. 12.00%
2 Praxai/Altair/Xxxxx/Aweco 2,190,113.76 ....... .............................. 12.00%
3 Holox/Xxxxxx 934,035.34 ....... .............................. 3.00%
4 AGA Gas 1,091,980.34 ....... .............................. 18.00%
5 United Welding Supply 450,255.98 ....... .............................. 3.00%
6 Linox-Gas Tech 49,196.07 ....... .............................. 3.00%
7 Airco/BOC 735,187.34 ....... .............................. 18.00%
8 Air Liquide Equity Dist 434,244.69 ....... .............................. 3.00%
9 Xxxxx 439,412.77 ....... .............................. 3.00%
10 Grupo Pariata 0.00 ....... .............................. 3.00%
11 ....... .............................. 2.00%
12 ....... .............................. 2.00%
Government............................... 38,292.36 ....... .............................. 2.00%
------------------------------------------------------------------------------------------------------------------------------------
EXCESS FOREIGN OBLIGOR BALANCES: Aggregate Outstanding Aggregate Receivables
Eligible Receivables Net of Excess Concentration Balances
--------------------- ------------------------------------
All Foreign Obligors Rated above BBB-..... 5,508,192.95 ....................................... 5,508,192.95
All Foreign Obligors Rated BBB- and below. 0.00 ....................................... 0.00
------------------------------------------------------------------------------------------------------------------------------------
COLLECTION ACCOUNT ACTIVITIES
Beginning Balance (Ending Balance
from previous day)........................ 0.00 <3,071,659.00>
Lockbox Receipts............................ 787,170.60
Reinvestment Earnings....................... 0.00
Proceeds from Sales of
Certificates to investors................. 0.00
Ordinary Course Expenses.................... 0.00
Purchase Price of New Receivables........... 1,082,014.00
Page 1
361
THERMADYNE RECEIVABLES, INC. DAILY REPORT
------------------------------------------------------------------------------------------------------------------------------------
Daily Report Date........... 30-Sep-99 Preceding Daily Report Date............ 29-Sep-99
Settlement Date (Y/N)....... N NEW DAY Prepared by: Xxx Xxxx.................. Xxx Xxxx
Report Prepared........................ 02/22/2000 16:22
------------------------------------------------------------------------------------------------------------------------------------
BEGINNING DAILY RECEIVABLES BALANCE......... 45,762,252.93 <46,262,694.91>
Plus: Gross Invoices/New Receivables........ 1,531,098.08 Less: Collections (applied)........... 969,917.14
Sales/Cash Discounts............ 135.00
Credit Memos.................... 44,184.00
Plus: Other Adjustments..................... (16,236.96) Volume Discounts................ 0.00
Misc. Credits................... 183.00
Interest and Principal on Xxxxxx
Purchase Price Note....................... 0.00
Dividends on Preferred Stock................ 0.00
Mandatory transfers to Prepayment Account... 0.00
(Principal, interest and (if applicable)
Early Termination Amounts (2))
------------------------------------------------------------------------------------------------------------------------------------
PURCHASE PRICE PAYABLE TO XXXXXX............................................................. 98.04%
XXXXXX PURCHASE PRICE NOTE
Beginning Principal Balance (Ending Balance from Previous day)............................... 69,280,309.00 <69,654,881.56>
Repayment of Principal due to Dilution and Noncomplying Receivables Adjustments.............. 0.00
RECONCILIATION OF SELLER ADJUSTMENTS
Beginning Balance of Dilution and Noncomplying Receivables Adjustments....................... 0.00
Plus: New Noncomplying Receivables Adjustments.............................................. 0.00
Less: Collection Received on Current or Past Noncomplying Receivables....................... 0.00
BASE AMOUNT CALCULATION
Applicable Reserve Ratio (as calculated in the Settlement Statement)......................... 30.958%
EXCESS FUNDING ACCOUNT
Adjusted Invested Amount
(Invested Amount on Day 1; thereafter, yesterday's ending Adjusted Invested Amount).......... 22,652,594.00 <26,019,096.40>
Beginning Excess Funding Account Balance (Yesterday's ending balance)........................ 25,221,823.00 <21,855,320.60>
DISCOUNT RATE RESERVE (DISCOUNT RATE RESERVE = ACC + ECC + EIC - CCR)
ACC = Accrued Carrying Costs and Servicer Fee(1) as of the date (see Settlement Statement)... 250,000.00
ECC = The Amount of additional Carrying Costs (excluding Interest) that will accrue
by the Specified Settlement Date (4 months of Carrying Costs Excluding Interest)....... 22,000.00
Labor Rate................................................................................... 5.88%
Turnover Days................................................................................ 52
CARRYING COSTS ACCOUNT
Carrying Costs Reserve as of beginning of today (Ending Balance of yesterday)................ 245,000.00 <245,000.00>
Page 2
362
THERMADYNE RECEIVABLES, INC. DAILY REPORT
------------------------------------------------------------------------------------------------------------------------------------
Daily Report Date........... 30-Sep-99 Preceding Daily Report Date............ 29-Sep-99
Settlement Date (Y/N)....... N NEW DAY Prepared by: Xxx Xxxx.................. Xxx Xxxx
Report Prepared........................ 02/22/2000 16:22
------------------------------------------------------------------------------------------------------------------------------------
BEGINNING DAILY RECEIVABLES BALANCE......... 45,762,252.93 <46,262,694.91>
Plus: Gross Invoices/New Receivables........ 1,531,098.08 Less: Collections (applied)........... 969,917.14
Sales/Cash Discounts............ 135.00
Credit Memos.................... 44,184.00
Plus: Other Adjustments..................... (16,236.96) Volume Discounts................ 0.00
Misc. Credits................... 183.00
Less: Payment of Carrying Costs.................................... 0.00
Page 3
363
EXHIBIT C-2
Form of Daily Report (Post-Liquidation Period)
364
UNLESS OTHERWISE INDICATED, PARTICIPATION INTERESTS IN ALL RECEIVABLES INCLUDED
HEREIN, AS WELL AS RELATED SECURITY, HAVE BEEN TRANSFERRED TO BANKERS TRUST, AS
AGENT AND REPRESENTATIVE OF THE INVESTORS IN ACCORDANCE WITH THE RECEIVABLES
PARTICIPATION AGREEMENT DATE 12/__/1999
THERMADYNE RECEIVABLES, INC. DAILY REPORT
------------------------------------------------------------------------------------------------------------------------------
Daily Report Date Post Liquidation
Preceding Daily Report Date Settlement Date (Y or N) N January-00
Prepared by: Xxx Xxxx
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
A. DAILY RECEIVABLES ACTIVITY
1. BEGINNING DAILY RECEIVABLES BALANCE 0
2. Plus: Gross Invoices / New Receivables 0
3. Less: Collections (applied) 0
4a. Less: Sales/Cash Discounts 0
4b. Less: Credit Memos 0
4c. Less: Volume Discounts 0
4d. Less: Misc. Credits 0
-----
4e. TOTAL 0
Less: Volume Rebates (Total Outstanding) 0
5. Less: Write-offs 0
6. Plus: Other Adjustments 0
-----
7. ENDING DAILY RECEIVABLES BALANCE 0
=====
------------------------------------------------------------------------------------------------------------------------------
B. COLLECTION ACCOUNT ACTIVITIES
1. Beginning Balance (Ending Balance from previous day) 0
1a. Plus: Lockbox Receipts 0
2. Less: Cash retained at the lockbox or Concentration Accounts 0
3. Plus: Reinvestment Earnings 0
5. Less: Actual Carrying Costs Paid Today 0
5a. Plus: Proceeds from Sales of Certificates to investors 0
-----
6. AVAILABLE CASH 0
7a. Less: Mandatory transfers to Excess Funding Account (see section G1.) 0
7b. Plus: Funds released from Excess Funding Account 0
7c. REMAINING AVAILABLE CASH 0
8. Participation Interests (see Section G. below) 0.00%
(Multiplied By) Remaining Available Cash (1a) 0
-----
0
9. Mandatory transfers to Prepayment Account (Principal, interest and (if applicable) Early Termination Amounts(2)) 0
10. Remainder of funds attributable to Participation Interest(1) (F8 - F9) 0
11. Transferor Interest of Collections (F7 - F8)(3) 0
12. CASH AVAILABLE TO MAKE PURCHASES [F10 + F11 unless insolvency or Liquidation Event(h)] 0
13. Repayment (In order of priority)
First Ordinary Course Expenses 0
Second Purchase Price of New Receivables 0
------------------------------------------------------------------------------------------------------------------------------
Page 1
365
Unless otherwise indicated, participation interests in all receivables included
herein, as well as related security, have been transferred to Bankers Trust, as
agent and representative of the investors in accordance with the Receivables
Participation Agreement date 12/__/1999
THERMADYNE RECEIVABLES, INC. DAILY REPORT
------------------------------------------------------------------------------------------------------------------------------
Daily Report Date Post Liquidation
Preceding Daily Report Date Settlement Date (Y or N) N January-00
Prepared by: Xxx Xxxx
==============================================================================================================================
Third Interest and Principal on Xxxxxx Purchase Price Note 0
Forth Dividends on Preferred Stock 0
14. ENDING BALANCE IN COLLECTION ACCOUNT 0
----------
(1) If an insolvency event or Liquidation Event (h) occurs, these amounts must be set aside for Investors.
(1a) Only applicable when there is a Liquidation Event (h) or insolvency event.
(2) Cannot exceed amount of (Available Cash) x (Participation Interest)
(3) If an insolvency event or Liquidation Event (h) occurs, 50% of these allocations must be set
aside until such amount equals 15% of the Dilutions Reserve at the date purchase ceases.
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
C. DEEMED COLLECTIONS
1. Deemed Collections on Account of Dilution Factors/Indemnification 0
2. Deemed New Amount Issue 0
3. Participation Interest in Deemed Collections 0
D. Application of Cash set aside for TRI
1 Beginning Balance
2 Payment of Carrying Costs
3 Funds transferred for account of investors as deemed collection
4 Ending Balance
------------------------------------------------------------------------------------------------------------------------------
E. INVESTED AMOUNT
1. Beginning 45,000,000
2. Plus: New amount issued 0
3. Less: Mandatory Repayments 0
4. Less: Voluntary Repayments 0
-----------
6. Ending Invested Amount 45,000,000
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
F. TRUSTEE PAYMENT INSTRUCTION
1a. Release of Funds from Carrying Costs Account #455039 to Collection Account #455036. 0
2a. Payment of Carrying Costs from Carrying Costs Acct. #455039 to Investor Acct.# _____. 0
2b. Payment of Carrying Costs from Carrying Costs Acct. #455039 to Other Persons Acct.# _____. 0
3. Mandatory transfer from Collection Acct #455036 to Excess Funding Acct. #455045. 0
3a. Release of funds from Excess Funding Acct #45505 to Collection Acct #455036. 0
6. Payment of Purchase Price from Collection Acct. #455036 to Thermadyne Acct. #00-000-000 (Bankers Trust) 0
7. Payment of Xxxxxx Purchase Price Note from Collection Acct. #455036 to Thermadyne Acct. #00-000-000 (Bankers Trust) 0
8. Payment of Ordinary Course Expenses from Collection Acct. #455036 to Thermadyne Acct. #00-000-000 (Bankers Trust) 0
9. Release of Interest Earned to Thermadyne Acct. #00-000-000 (Bankers Trust):
From: Excess Funding Account #455045 0.00
Carrying Costs Account #455039 0.00
Collection Account #455036 0.00
--------
Total 0.00 0
------------------------------------------------------------------------------------------------------------------------------
Page 2
366
EXHIBIT D-1
Form of Settlement Statement (Pre-Liquidation Period)
367
UNLESS OTHERWISE INDICATED, PARTICIPATION INTERESTS IN ALL RECEIVABLES INCLUDED
HEREIN, AS WELL AS RELATED SECURITY, HAVE BEEN TRANSFERRED TO BANKERS TRUST AS
AGENT AND REPRESENTATIVE OF THE INVESTORS IN ACCORDANCE WITH THE RECEIVABLES
PARTICIPATION AGREEMENT DATED 12/__/1999
PRE-LIQUIDATION SETTLEMENT STATEMENT
--------------------------------------------------------------------------------
Report Date 10 Nov 99 03:08 PM Participation Amount
Settlement Date 15 Nov 99 03/06/00 50,000.00
Collection Period 10/01/99 to 10/30/99
SUMMARY
--------------------------------------------------------------------------------
MONTHLY RECEIVABLES ACTIVITIES
BEGINNING RECEIVABLES BALANCE (FROM GENERAL LEDGER) 47,582
Plus: Gross Invoices 25,509
(Less): Collections (26,131)
(Less): Sales/Cash Discounts (62)
Credit Memos (777)
Special Allowance & Volume Rebates (114)
Miscellaneous Credits 408
--------------------- ------
Total Dilutive Credits (545) (545)
(Less): Bad Debt Write-offs 0
Plus (Less): Other 276
ENDING RECEIVABLES BALANCE 46,691 11774
=======
TURNOVER DAYS
--------------------------------------------------------------------------------
Turnover Days = [The sum of last 3 months ending A/R balance + total sales
for 3 Collection Periods] x 30 days
Current Month Preceding Month 2nd Preceding Month
------------------ ------------------- ------------------- 46,691 60,018
Ending AR Ending AR Ending AR 25,509 36,838
Balance Sales Balance Sales Balance Sales Turnover Days
--------- ----- --------- ----- --------- ----- -------------
C&G Systems 2,769 2,409 2,451 1,938 2,334 2,089 35
Stoody 2,769 2,409 2,451 1,938 2,334 2,089 35
Thermadyne Arc 7,382 1,128 7,854 1,419 8,713 1,891 162
Thermadyne Int'l 7,382 1,128 7,854 1,419 8,713 1,891 162
Thermal Dynamics 7,631 3,905 7,806 4,322 6,946 4,027 55
Xxxxxx 18,654 11,167 19,250 11,400 16,716 10,406 50
Xxxxxx Gas Systems 18,654 11,167 19,250 11,400 16,716 10,406 50
Tweco 10,255 6,900 10,221 6,623 9,085 6,707 44
Total 75,496 40,213 77,137 40,459 71,557 39,506 56
PURCHASE PRICE PERCENTAGE
--------------------------------------------------------------------------------
Purchase Price Percentage = 100% - Loss Discount Ratio - Purchase Discount Rate Reserve Ratio
LOSS DISCOUNT: Write-offs (net of recoveries) last 3 mos. + Receiv. Notes (net of recoveries) last 3 mos.
------------------------------------------------------------------------------------------
(CAN BE NO LESS THAN ZERO) Total Collections last 3 months
Current Month Preceding Month 2nd Preceding Month
--------------------------------- --------------------------------- --------------------------------
Write- Receiv. Tot. Write- Receiv. Tot. Write- Receiv. Tot.
offs Notes Collections offs Notes Collections offs Notes Collections
------ --------- ----------- ------ -------- ----------- ------ -------- -----------
(net of recoveries) (net of recoveries) (net of recoveries)
C&G Systems
Stoody
Thermadyne Arc
Thermadyne Int'l
Thermal Dynamics
Xxxxxx
Xxxxxx Gas Systems
Tweco
Total 0 0 0 0 0 0 0 0 0
(A) (B) (C) (A+B)/C
Write-offs (net of recoveries) Receivables converted into Notes Collections Loss Discount
C&G Systems 0 0 0 0.00%
Stoody 0 0 0 0.00%
Thermadyne Arc 0 0 0 0.00%
Thermadyne Int'l 0 0 0 0.00%
Thermal Dynamics 0 0 0 0.00%
Xxxxxx 0 0 0 0.00%
Xxxxxx Gas Systems 0 0 0 0.00%
Tweco 0 0 0 0.00%
0 0 0 0.00%
---- ---- ---- ----
Total 0 0 0 0.00%
PURCHASE DISCOUNT RATE RESERVE RATIO: (PDRR) Turnover Days x (Discount Rate + Profit Discount)
-------------
360
Discount Rate = Costs of Funds + Carrying Costs (Excluding Interest)
Ending Receivables Balance
Discount Rate = 5.90% + 5.50 = 5.91%
-------------
75,496
Profit Discount = 0.25%
Profit + Discount = 6.16%
Purchase Price Percentage = 100% Loss discount PDRR
Turnover Days PDRR Purchase Price %
C&G Systems 35 0.60% 99.40%
Stoody 35 0.60% 99.40%
Thermadyne Arc 162 2.77% 97.23%
Page 1
368
UNLESS OTHERWISE INDICATED, PARTICIPATION INTERESTS IN ALL RECEIVABLES INCLUDED
HEREIN, AS WELL AS RELATED SECURITY, HAVE BEEN TRANSFERRED TO BANKERS TRUST AS
AGENT AND REPRESENTATIVE OF THE INVESTORS IN ACCORDANCE WITH THE RECEIVABLES
PARTICIPATION AGREEMENT DATED 12/___/1999
Pre-Liquidation Settlement Statement
--------------------------------------------------------------------------------------------------
Report Date 10-Nov-99 03:08 PM Participation Amount
Settlement Date 15-Nov-99 03:06:00 50,000.00
Collection Period 10-01-99 to 10-30-99
Thermadyne Int'l 162 2.77% 97.23%
Thermal Dynamics 55 0.94% 99.06%
Xxxxxx 50 0.85% 99.15%
Xxxxxx Gas Systems 50 0.85% 99.15%
Tweco 44 0.75% 99.15%
--------------------------------------------------------------------------
Total 56 0.96% 99.04%
Page 2
369
UNLESS OTHERWISE INDICATED, PARTICIPATION INTERESTS IN ALL RECEIVABLES INCLUDED
HEREIN, AS WELL AS RELATED SECURITY, HAVE BEEN TRANSFERRED TO BANKERS TRUST AS
AGENT AND REPRESENTATIVE OF THE INVESTORS IN ACCORDANCE WITH THE RECEIVABLES
PARTICIPATION AGREEMENT DATED 12/___/1999
Pre-Liquidation Settlement Statement
---------------------------------------------------------------------------------------------------
Report Date 10-Nov-99 03:08 PM Participation Amount
Settlement Date 15-Nov-99 03/06/00 50,000.00
Collection Period 10/01/99 to 10/30/99
APPLICABLE RESERVE RATIO
--------------------------------------------------------------------------------------------------
(A) REQUIRED RESERVE RATIOS (see Schedule B)
Loss Reserve Ratio 18.39%
Dilution Reserve Ratio 17.71%
--------
36.10%
(B) MINIMUM REQUIRED RESERVE RATIO (see Schedule B)
Minimum Required Reserve Ratios [(Z) + (ADRO) * (DHVO)] = 23.07% (Y) (Avg. of Dilution Ratios
for the (Dilution Horizon
Variable)
Z = 18.00%
ADR = 4.18%
DHV = 1.213
(C) Applicable Reserve Ratio
The Applicable Reserve Ratio should be the greater of (A) Required Reserve
Ratios and (B) Minimum Required Reserve Ratio.
Applicable Reserve Ratio = 36.100%
and may never be less than 18.00%
APPLICABLE RESERVE RATIO = 36.100%
COST OF FUNDS
--------------------------------------------------------------------------------------------------
5.90000%
Page 3
370
Unless otherwise indicated, participation interests in all receivables included
herein, as well as related security, have been transferred to Bankers Trust as
agent and representative of the investors in accordance with the Receivables
Participation Agreement dated 12/___/ 1999
Pre-Liquidation Settlement Statement
---------------------------------------------------------------------------------------------------
Report Date 10-Nov-99 03:08 PM Participation Amount
Settlement Date 15-Nov-99 03/06/00 50,000.00
Collection Period 10/01/99 to 10/30/99
CARRYING COSTS SCHEDULE A
---------------------------------------------------------------------------------------------------
ACCRUED CARRYING COSTS (FOR NEXT MONTH)(1) = $251.33
Carrying Costs Percentage = Carrying Costs Billed During Month
(other than interest)
Carrying Costs Billed During the Month (other than interest)
1. Trustee's Fees 0.50
2. Ordinary Course Expenses of TRI 5.00
3. Expenses and other indemnification amounts owed by TRI 0.00
4. Servicer Fees ([2.0%] x No. of Days 365)(only if Servicer
is not Xxxxxx or a Xxxxxx Affiliate) 0.00
See Definitions for further explanation ----
Total 5.50
(1) Represents estimated carrying costs from settlement
statement to settlement statement
Page 4
371
UNLESS OTHERWISE INDICATED, PARTICIPATION INTERESTS IN ALL RECEIVABLES INCLUDED
HEREIN, AS WELL AS RELATED SECURITY, HAVE BEEN TRANSFERRED TO BANKERS TRUST AS
AGENT AND REPRESENTATIVE OF THE INVESTORS IN ACCORDANCE WITH THE RECEIVABLES
PARTICIPATION AGREEMENT DATED 12/___/1999
Pre-Liquidation Settlement Statement
===================================================================================================
Report Date 10-Nov-99 03:08 PM Participation Amount
Settlement Date 15-Nov-99 03/06/00 50,000.00
Collection Period 10/01/99 to 10/30/99
REQUIRED RESERVE CALCULATIONS SCHEDULE B
====================================================================================================================================
LOSS RESERVE RATIO
------------------------------------------------------------------------------------------------------------------------------------
LRR = 2.5 x ARRS x bS
ARRS = Highest average of the Aged Receivables Ratio (as defined below) for any
3 consecutive Collection Periods in the latest 12 Collection Periods.
bS = (A) / (B)
(A) Sum of the original balances of Receivables generated by during the three Collection Periods preceding or
ending on the most recent Cut-Off date
(B) aggregate outstanding balance of all Receivables generated by as calculated on the most recent Cut-Off Date
ARRS = 4.499%
bS = 1.635
LRR = 18.390%
DILUTION RESERVE RATIO
====================================================================================================================================
DRR = [(2.5 x ADRS) + {(HDRS - ADRS) x (HDRS/ADRS)}] x DHVS
ARRS = Average of the Dilution Ratios for the 12-month period ending on the most recent Cut-Off Date
HDRS = Highest average of the Dilution Ratios for any 2 consecutive Collection Periods calculated within
the 12-month period ending on the most recent Cut-Off Date
DHVS: (X) / (Y)
(X) Aggregate original balances of new Receivables generated during the 2 Collection Periods ending on
most recent Cut-Off Date.
(Y) Aggregate outstanding balances of Eligible Receivables generated, as calculated on the most recent Cut-Off Date.
ADRS = 4.176%
HDRS = 6.750%
DHVS = 1.213
DRRS = 17.710%
Page 5
372
Participation Amount
50,000.00
Unless otherwise indicated, participation interests in all receivables included
herein, as well as related security, have been transferred to Bankers Trust as
agent and representative of the investors in accordance with the Receivables
Participation Agreement dated 12/__ 1999
Pre-Liquidation Settlement Statement
--------------------------------------------------------------------------------
Report Date 10-Nov-99 03:08 PM
Settlement Date 15-Nov-99 03/06/00
Collection Period 10/01/99 to 10/30/99
MONTH END NET WORTH CALCULATIONS SCHEDULE C
--------------------------------------------------------------------------------
Net Worth Limit (as of 12-31-97)
Net Worth of TRI equals sum of (A)&(B)&(C)
(A) Amount of its Capital Stock 0.10
(B) Additional Capital 14,619.30
(C) Amount of Surplus and Retained Earnings 0.00
OR
In the event of a Surplus or Retained Earnings
deficit Minus the amount of such deficit (3,835.80)
TOTAL 10,783.60
The Net Worth of TRI should be Greater than 7.80% Receivables Balance
in compliance with Net Worth Test? YES
Page 6
373
Unless otherwise indicated, participation interests in all receivables included
herein, as well as related security, have been transferred to Bankers Trust as
agent and representative of the investors in accordance with the Receivables
Participation Agreement dated 12/__/ 1999
Pre-Liquidation Settlement Statement
--------------------------------------------------------------------------------
Report Date 10-Nov-99 03:08 PM
Settlement Date 15-Nov-99 03/06/00
Collection Period 10-01-99 to 10-30-99
Participation Amount
50,000.00
Pursuant to Section 8.03(b) of the Receivables Participation Agreement dated
December __, 1999 among Thermadyne Receivables, Inc., as Transferor and Bankers
Trust, as Trustee, we hereby certify that, as of the Collection period ending
12-31-98 no Liquidation Event or Servicer Termination Event has occurred and is
continuing.
Dated: November 10, 1999
----------------------
------------------------------------------------
Xxxxxxx X. Xxxx
as Authorized Officer of the Servicer
------------------------------------------------
Xxxxxxx X. Xxxx
as Authorized Officer of the Collection Agent
Page 7
374
EXHIBIT D-2
Form of Settlement Statement (Post-Liquidation Period)
375
UNLESS OTHERWISE INDICATED, PARTICIPATION INTERESTS IN ALL RECEIVABLES INCLUDED
HEREIN, AS WELL AS RELATED SECURITY, HAVE BEEN TRANSFERRED TO BANKERS TRUST AS
AGENT AND REPRESENTATIVE OF THE INVESTORS IN ACCORDANCE WITH THE RECEIVABLES
PARTICIPATION AGREEMENT DATED 12/__/1999
--------------------------------------------------------------------------------
Report Date 10-Nov-99 03:29 PM Participation Amount
Settlement Date 15-Nov-99 03/06/00 50,000.00
Collection Period 10/01/99 to 10/30/99
SUMMARY
--------------------------------------------------------------------------------
MONTHLY RECEIVABLES ACTIVITIES
BEGINNING RECEIVABLES BALANCE (FROM GENERAL LEDGER) 47,582
Plus: Gross Invoices 25,509
(Less): Collections (26,131)
(Less): Sales/Cash Discounts (62)
Credit Memos (777)
Special Allowance & Volume Rebates (114)
Miscellaneous Credits 408
--------------------- ------
Total Dilutive Credits (545) (545)
(Less): Bad Debt Write-offs 0
Plus (Less): Other 276
ENDING RECEIVABLES BALANCE 46,691 11774
=======
TURNOVER DAYS
--------------------------------------------------------------------------------
Turnover Days = [The sum of last 3 months ending A/R balance + total sales
for 3 Collection Periods] x 30 days
Current Month Preceding Month 2nd Preceding Month
------------------ ------------------- -------------------
Ending AR Ending AR Ending AR 46,691 60,018
Balance Sales Balance Sales Balance Sales Turnover Days 25,509 36,838
--------- ----- ------- ----- --------- ----- -------------
C&G Systems 2,769 2,409 2,451 1,938 2,334 2,089 35
Stoody 2,769 2,409 2,451 1,938 2,334 2,089 35
Thermadyne Arc 7,382 1,128 7,854 1,419 8,713 1,891 162
Thermadyne Int'l 7,382 1,128 7,854 1,419 8,713 1,891 162
Thermal Dynamics 7,631 3,905 7,806 4,322 6,946 4,027 55
Xxxxxx 18,654 11,167 19,250 11,400 16,716 10,406 50
Xxxxxx Gas Systems 18,654 11,167 19,250 11,400 16,716 10,406 50
Tweco 10,255 6,900 10,221 6,623 9,085 6,707 44
Total 75,496 40,213 77,137 40,459 71,557 39,506 56
PURCHASE PRICE PERCENTAGE
-----------------------------------------------------------------------------------------------------------------------
Purchase Price Percentage = 100% - Loss Discount Ratio - Purchase Discount Rate Reserve Ratio
LOSS DISCOUNT: Write-offs (net of recoveries) last 3 mos. + Receiv. Notes (net of recoveries) last 3 mos.
------------------------------------------------------------------------------------------
(CAN BE NO LESS THAN ZERO) Total Collections last 3 months
Current Month Preceding Month 2nd Preceding Month
------------------------------ ------------------------------ -----------------------------
Write- Receiv. Tot. Write- Receiv. Tot. Write- Receiv. Tot.
offs Notes Collections offs Notes Collections offs Notes Collections
------ ------- ----------- ------ ------- ----------- ------ ------- -----------
(net of recoveries) (net of recoveries) (net of recoveries)
C&G Systems
Stoody
Thermadyne Arc
Thermadyne Int'l
Thermal Dynamics
Xxxxxx
Xxxxxx Gas Systems
Tweco
Total 0 0 0 0 0 0 0 0 0
(A) (B) (C) (A+B)/C
Write-offs (net of recoveries) Receivables converted into Notes Collections Loss Discount
C&G Systems 0 0 0 0.00%
Stoody 0 0 0 0.00%
Thermadyne Arc 0 0 0 0.00%
Thermadyne Int'l 0 0 0 0.00%
Thermal Dynamics 0 0 0 0.00%
Xxxxxx 0 0 0 0.00%
Xxxxxx Gas Systems 0 0 0 0.00%
Tweco 0 0 0 0.00%
0 0 0 0.00%
---- ---- ---- ----
Total 0 0 0 0.00%
PURCHASE DISCOUNT RATE RESERVE RATIO: (PDRR) Turnover Days x (Discount Rate + Profit Discount)
-------------
360
Discount Rate = Costs of Funds + Carrying Costs (Excluding Interest)
Ending Receivables Balance
Discount Rate = 5.90% + 5.50 = 5.91%
-------------
75,496
Profit Discount = 0.25%
Profit + Discount = 6.16%
Purchase Price Percentage = 100% Loss discount PDRR
Turnover Days PDRR Purchase Price %
C&G Systems 35 0.60% 99.40%
Stoody 35 0.60% 99.40%
Thermadyne Arc 162 2.77% 97.23%
Page 1
376
UNLESS OTHERWISE INDICATED, PARTICIPATION INTERESTS IN ALL RECEIVABLES INCLUDED
HEREIN, AS WELL AS RELATED SECURITY, HAVE BEEN TRANSFERRED TO BANKERS TRUST AS
AGENT AND REPRESENTATIVE OF THE INVESTORS IN ACCORDANCE WITH THE RECEIVABLES
PARTICIPATION AGREEMENT DATED 12/___/1999
--------------------------------------------------------------------------------------------------
Report Date 10-Nov-99 03:29 PM Participation Amount
Settlement Date 15-Nov-99 03/06/00 50,000.00
Collection Period 10/01/99 to 10/30/99
Thermadyne Int'l 162 2.77% 97.23%
Thermal Dynamics 55 0.94% 99.06%
Xxxxxx 50 0.85% 99.15%
Xxxxxx Gas Systems 50 0.85% 99.15%
Tweco 44 0.75% 99.25%
--------------------------------------------------------------------------
Total 56 0.96% 99.04%
Page 2
377
UNLESS OTHERWISE INDICATED, PARTICIPATION INTERESTS IN ALL RECEIVABLES INCLUDED
HEREIN, AS WELL AS RELATED SECURITY, HAVE BEEN TRANSFERRED TO BANKERS TRUST AS
AGENT AND REPRESENTATIVE OF THE INVESTORS IN ACCORDANCE WITH THE RECEIVABLES
PARTICIPATION AGREEMENT DATED 12/___/1999
Pre-Liquidation Settlement Statement
--------------------------------------------------------------------------------------------------
Report Date 10-Nov-99 03:29 PM Participation Amount
Settlement Date 15-Nov-99 03:06:00 50,000.00
Collection Period 10/01/99 to 10/30/99
APPLICABLE RESERVE RATIO
--------------------------------------------------------------------------------------------------
(A) REQUIRED RESERVE RATIOS (see Schedule B)
Loss Reserve Ratio 18.39%
Dilution Reserve Ratio 17.71%
--------
36.10%
(B) MINIMUM REQUIRED RESERVE RATIO (see Schedule B)
Minimum Required Reserve Ratios [(Z) + (ADRO) * (DHVO)] = 23.07% (Y) (Avg. of Dilution Ratios
for the (Dilution Horizon
Variable)
Z = 18.00%
ADR = 4.18%
DHV = 1.213
(C) Applicable Reserve Ratio
The Applicable Reserve Ratio should be the greater of (A) Required Reserve
Ratios and (B) Minimum Required Reserve Ratio.
Applicable Reserve Ratio = 36.100%
and may never be less than 18.00%
APPLICABLE RESERVE RATIO = 36.100%
COST OF FUNDS
--------------------------------------------------------------------------------------------------
5.90000%
Page 3
378
Unless otherwise indicated, participation interests in all receivables included
herein, as well as related security, have been transferred to Bankers Trust as
agent and representative of the investors in accordance with the Receivables
Participation Agreement dated 12/___/1999
---------------------------------------------------------------------------------------------------
Report Date 10-Nov-99 03:29 PM Participation Amount
Settlement Date 15-Nov-99 03/06/00 50,000.00
Collection Period 10/01/99 to 10/30/99
CARRYING COSTS SCHEDULE A
---------------------------------------------------------------------------------------------------
ACCRUED CARRYING COSTS (FOR NEXT MONTH)(1) = $251.33
Carrying Costs Percentage = Carrying Costs Billed During Month
(other than interest)
Carrying Costs Billed During the Month (other than interest)
1. Trustee's Fees 0.50
2. Ordinary Course Expenses of TRI 5.00
3. Expenses and other indemnification amounts owed by TRI 0.00
4. Servicer Fees ([2.0%] x No. of Days/365)(only if Servicer
is not Xxxxxx or a Xxxxxx Affiliate) 0.00
See Definitions for further explanation ----
Total 5.50
(1) Represents estimated carrying costs from settlement
statement to settlement statement
Page 4
379
UNLESS OTHERWISE INDICATED, PARTICIPATION INTERESTS IN ALL RECEIVABLES INCLUDED
HEREIN, AS WELL AS RELATED SECURITY, HAVE BEEN TRANSFERRED TO BANKERS TRUST AS
AGENT AND REPRESENTATIVE OF THE INVESTORS IN ACCORDANCE WITH THE RECEIVABLES
PARTICIPATION AGREEMENT DATED 12/___/1999
===================================================================================================
Report Date 10-Nov-99 03:29 PM Participation Amount
Settlement Date 15-Nov-99 03/06/00 50,000.00
Collection Period 10/01/99 to 10/30/99
REQUIRED RESERVE CALCULATIONS SCHEDULE B
====================================================================================================================================
LOSS RESERVE RATIO
------------------------------------------------------------------------------------------------------------------------------------
LRR = 2.5 x ARRS x bS
ARRS = Highest average of the Aged Receivables Ratio (as defined below) for any
3 consecutive Collection Periods in the latest 12 Collection Periods
bS = (A) / (B)
(A) Sum of the original balances of Receivables generated by during the three Collection Periods preceding or
ending on the most recent Cut-Off date
(B) aggregate outstanding balance of all Receivables generated by as calculated on the most recent Cut-Off Date
ARRS = 4.499%
bS = 1.635
LRR = 18.390%
DILUTION RESERVE RATIO
====================================================================================================================================
DRR = [(2.5 x ADRS) + {(HDRS - ADRS) x (HDRS / ADRS)}] x DHVS
ADRS = Average of the Dilution Ratios for the 12-month period ending on the most recent Cut-Off Date
HDRS = Highest average of the Dilution Ratios for any 2 consecutive Collection Periods calculated within
the 12-month period ending on the most recent Cut-Off Date
DHVS: (X) / (Y)
(X) Aggregate original balances of new Receivables generated during the 2 Collection Periods ending on
most recent Cut-Off Date.
(Y) Aggregate outstanding balances of Eligible Receivables generated, as calculated on the most recent Cut-Off Date.
ADRS = 4.176%
HDRS = 6.750%
DHVS = 1.213
DRRS = 17.710%
Page 5
380
Participation Amount
50,000.00
Unless otherwise indicated, participation interests in all receivables included
herein, as well as related security, have been transferred to Bankers Trust as
agent and representative of the investors in accordance with the Receivables
Participation Agreement dated 12/__ 1999
--------------------------------------------------------------------------------
Report Date 10-Nov-99 03:29 PM
Settlement Date 15-Nov-99 03/06/00
Collection Period 10/01/99 to 10/30/99
MONTH END NET WORTH CALCULATIONS SCHEDULE C
--------------------------------------------------------------------------------
Net Worth Limit (as of 12-31-97)
Net Worth of TRI equals sum of (A) & (B) & (C)
(A) Amount of its Capital Stock 0.10
(B) Additional Capital 14,619.30
(C) Amount of Surplus and Retained Earnings 0.00
OR
In the event of a Surplus or Retained
Earnings deficit
Minus the amount of such deficit (3,835.80)
TOTAL 10,783.60
The Net Worth of TRI should be Greater than 7.80% Receivables Balance
in compliance with Net Worth Test? YES
Page 6
381
Unless otherwise indicated, participation interests in all receivables included
herein, as well as related security, have been transferred to Bankers Trust as
agent and representative of the investors in accordance with the Receivables
Participation Agreement dated 12/__/ 1999
--------------------------------------------------------------------------------
Report Date 10-Nov-99 03:29 PM
Settlement Date 15-Nov-99 03/06/00
Collection Period 10/01/99 to 10/30/99
Participation Amount
50,000.00
Pursuant to Section 8.03(b) of the Receivables Participation Agreement dated
December __, 1999 among Thermadyne Receivables, Inc., as Transferor and Bankers
Trust, as Trustee, we hereby certify that, as of the Collection period ending
12/31/98, no Liquidation Event or Servicer Termination Event has occurred and
is continuing.
Dated: November 10, 1999
----------------------
------------------------------------------------
Xxxxxxx X. Xxxx
as Authorized Officer of the Servicer
------------------------------------------------
Xxxxxxx X. Xxxx
as Authorized Officer of the Collection Agent
Page 7
382
EXHIBIT E
FORM OF AUTHORIZED OFFICER'S CERTIFICATE
383
EXHIBIT E
TO
RECEIVABLE PURCHASE AND SALE AGREEMENT
BETWEEN THERMADYNE RECEIVABLES, INC., AS PURCHASER,
XXXXXX EQUIPMENT COMPANY, AS SELLER AND SERVICER, AND
THERMADYNE MFG. LLC AS GUARANTOR
FORM OF AUTHORIZED OFFICER'S CERTIFICATE
The undersigned, ___________________, hereby certifies as of ___________,
that [s]he is the duly elected and acting [describe officer's title] of the
Thermadyne Receivables, Inc., a Delaware corporation ("TRI"), and the attached
hereto as Exhibit A is a true, correct and complete copy of the unaudited annual
statement of operations and the related balance sheet (the "Financial
Statements") as described in Section 4.05 of the Receivables Purchase and Sale
Agreement dated as of January 31, 2000 (the "Agreement") between TRI, as
Purchaser, Xxxxxx Equipment Company, as Seller and Servicer, and Thermadyne Mfg.
LLC, as Guarantor, as the same may be supplemented, amended or otherwise
modified from time to time. Capitalized terms used and not otherwise defined
herein shall have the meaning ascribed to them in the Agreement.
The Financial Statements fairly present the financial position and results
of operations of TRI in accordance with GAAP consistently applied (except for
such changes in application which are approved by the undersigned and disclosed
therein) [and to the best of the undersigned's knowledge, no Liquidation Event
or Unmatured Liquidation Event has occurred during the period represented in the
Financial Statements.]*
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
date first written above.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
* Use bracketed text if applicable. Otherwise, if a liquidation Event or
Unmatured Liquidation Event has occurred, describe it and the steps, if
any, taken or being taken to cure it.
384
TAB 7
385
XXXXXX PURCHASE PRICE NOTE
January 31, 2000
FOR VALUE RECEIVED, the undersigned, THERMADYNE RECEIVABLES, INC., a
Delaware corporation ("TRI"), promises to pay to XXXXXX EQUIPMENT COMPANY, a
Delaware corporation ("Xxxxxx" and together with its successors and assigns, the
"Holder"), on the terms and subject to the conditions set forth in this
promissory note (this "Note") and in that certain Receivables Purchase and Sale
Agreement of even date herewith (the "RPSA") among Xxxxxx, as seller, TRI, as
purchaser, and Thermadyne Mfg. LLC, as guarantor, an amount equal to the
aggregate unpaid principal amount of all borrowings deemed to be made by TRI
from Xxxxxx pursuant to Section 2.02(e) of the RPSA. Such amount, as shown in
the records of the Servicer, will be rebuttable presumptive evidence of the
principal amount and interest owing under this Note.
1. RPSA. This Note is the Xxxxxx Purchase Price Note described, and is
subject to the terms and conditions set forth, in the RPSA. Reference is hereby
made to the RPSA for a statement of certain other rights and obligations of TRI
and Xxxxxx.
2. Rules of Construction; Definitions. Certain rules of construction
governing the interpretation of this Note are set forth in Annex I to the RPSA
and, except as otherwise specifically provided herein, capitalized terms used
but not defined herein have the meanings ascribed thereto in Annex I to the
RPSA. In addition, as used herein, the following terms have the following
meanings:
"Bankruptcy Proceedings" means any dissolution, winding up,
liquidation, readjustment, reorganization or other similar event relating
to TRI, whether voluntary or involuntary, partial or complete, and whether
in bankruptcy, insolvency, receivership or other similar proceedings, or
upon an assignment for the benefit of creditors, or any other marshalling
of the assets and liabilities of TRI or any sale of all or substantially
all of the assets of TRI; provided, however, that none of (i) the
commencement of the Liquidation Period, (ii) the allocation and
distribution of Collections and other amounts during the Liquidation Period
in accordance with the terms of the RPA and (iii) the liquidation,
dissolution and winding up of TRI after the termination of the RPA shall
constitute a "Bankruptcy Proceeding," so long as no bankruptcy, insolvency,
Xxxxxx Purchase Note
386
receivership or other similar proceedings shall have been commenced by or
against TRI and be continuing.
"Final Maturity Date" means the date occurring one year and one day
after the Scheduled Initial Principal Payment Date.
"Highest Lawful Rate" has the meaning set forth in paragraph 9 hereof.
"Junior Liabilities" means all obligations of TRI to the Holder under
this Note.
"Reference Rate" means, with respect to any day occurring in a
Collection Period, the rate of interest publicly announced from time to
time by ABN AMRO Incorporated as its "prime rate" and in effect on the
first day of such Collection Period, as determined by the Servicer.
"Senior Interests" means all obligations of TRI to the Trustee and/or
holders of Certificates, howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter existing, or
due or to become due, including without limitation interest or other
amounts due or to become due after an Event of Bankruptcy.
"Senior Parties" means the holders of the Senior Interests.
"Subordination Provisions" means, collectively, the provisions of
paragraph 7 hereof.
"TRI Person" means TRI and all of its affiliates.
3. Interest. Subject to the Subordination Provisions, TRI promises to pay
interest on the aggregate unpaid principal amount of this Note outstanding on
each day during a Collection Period at an adjustable rate per annum equal to the
LIBO Rate in effect on the second Business Day in London prior to the
commencement of such Collection Period.
4. Interest Payment Dates.
(a) Subject to the Subordination Provisions, TRI shall pay accrued
interest on this Note on each Settlement Date and on the Final Maturity
Date. TRI also shall pay accrued interest on the principal amount of each
prepayment hereof on the date such prepayment is made.
-2- Xxxxxx Purchase Note
387
(b) Notwithstanding the provisions of paragraph 4(a), in the event
that on the date an interest payment is due hereunder the amount of funds
available therefor pursuant to Section 8.07 or 8.08 of the RPA is
insufficient to pay any amount due pursuant to paragraph 4 (a), then
interest shall be payable only to the extent that funds are available
therefor in accordance with Section 8.07 and 8.08 of the RPA. All interest
on this Note that is not paid when due pursuant to this paragraph 4(b)
shall be automatically deferred, shall constitute a portion of the
principal balance of this Note and shall be payable on the next date on
which an interest payment on this Note is due and on which funds are
available therefor pursuant to Section 8.07 or 8.08 of the RPA, and all
such unpaid interest shall accrue interest at the LIBO Rate until paid in
full.
5. Basis of Computation. Interest accrued hereunder shall be computed for
the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Subject to the Subordination Provisions, any
unpaid principal of this Note shall only become due and payable on the Final
Maturity Date. Subject to the Subordination Provisions, the principal amount of
and accrued interest on this Note may be prepaid on any Business Day without
premium or penalty; provided, that no prepayment shall be made by TRI to the
extent that such prepayment would result in a default in the payment of any
other amount required to be paid by TRI under any Program Document.
7. Subordination Provisions. TRI covenants and agrees, and each Holder, by
its acceptance of this Note, likewise covenants and agrees, that the payment of
all Junior Liabilities is hereby expressly subordinated in right of payment to
the payment and performance of the Senior Interests to the extent and in the
manner set forth in this paragraph 7:
(a) In the event of any Bankruptcy Proceeding, the Senior Interests
shall first be paid and performed in full and in cash before the Holder
shall be entitled to receive and to retain any payment or distribution in
respect of the Junior Liabilities. In order to implement the foregoing: (i)
following the commencement of a Bankruptcy Proceeding, all payments and
distributions of any kind or character in respect of the Junior Liabilities
to which the Holder would be entitled except for this clause (a) shall be
made directly to the Senior Parties, and (ii) if a Bankruptcy Proceeding
has been commenced, the Holder shall promptly file a claim or claims, in
the form required in any Bankruptcy Proceedings, for the full outstanding
amount of the Junior Liabilities, and shall use commercially
-3- Xxxxxx Purchase Note
388
reasonable efforts to cause said claim or claims to be approved and all
payments and other distributions in respect thereof to be made directly to
the Senior Parties until the Senior Interests shall have been paid and
performed in full and in cash.
(b) After the commencement of any Bankruptcy Proceeding, in the event
that the Holder receives any payment or other distribution of any kind or
character from TRI or from any other source whatsoever, in payment of the
Junior Liabilities, such payment or other distribution shall be received in
trust for the Senior Parties and shall be turned over by the Holder to the
Senior Parties forthwith.
(c) The Holder shall not be subrogated to the rights of the Senior
Parties to receive payments or distributions from TRI that are applicable
to the Senior Interests until the Senior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose
of defining the relative rights of the Holder, on the one hand, and the
Senior Parties on the other hand. Nothing contained in these Subordination
Provisions or elsewhere in this Note is intended to or shall impair, as
between TRI, its creditors (other than the Senior Parties) and the Holder,
TRI's obligation, which is unconditional and absolute, to pay the Junior
Liabilities as and when the same shall become due and payable in accordance
with the terms hereof and of the RPSA or to affect the relative rights of
the Holder and creditors of TRI (other than the Senior Parties)
(e) The Holder shall not, until the Senior Interests have been finally
paid and performed in full and in cash, (i) cancel, waive, forgive,
transfer or assign, or commence legal proceedings to enforce or collect, or
subordinate to any obligation of TRI (other than to the Senior Interests),
howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, or now or hereafter existing, or due or to become
due, the Junior Liabilities or any rights in respect hereof or (ii) convert
the Junior Liabilities into an equity interest in TRI, unless, in the case
of each of clauses (i) and (ii) above, the Holder shall have received the
prior written consent of the Senior Parties in each case.
(f) The Holder shall not, without the advance written consent of the
Senior Parties, commence, or join with any other Person in commencing, any
Bankruptcy Proceedings with respect to TRI until at least one year and one
day shall have passed after the Senior Interests shall have been
-4- Xxxxxx Purchase Note
389
finally paid and performed in full and in cash; provided, however, that the
Holder shall at all times have the right to file any claim in or otherwise
take any action with respect to any insolvency proceeding instituted
against TRI by any Person other than the Holder, TRI or any other TRI
Person (provided that no such action may be taken by the Holder until such
proceeding has continued undismissed, unstayed and in effect for a period
of 10 days).
(g) If, at any time, any payment (in whole or in part) made with
respect to any Senior Interest is rescinded or must be restored or returned
by a Holder (whether in connection with any Bankruptcy Proceedings or
otherwise), these Subordination Provisions shall continue to be effective
or shall be reinstated, as the case may be, as though such payment had not
been made.
(h) Each of the Senior Parties may, from time to time, in its sole
discretion, without notice to the Holder, and without waiving any of its
rights under these Subordination Provisions, take any or all of the
following actions: (i) retain or obtain an interest in any property to
secure any of the Senior Interests; (ii) retain or obtain the primary or
secondary obligations of any other obligor or obligors with respect to any
of the Senior Interests; (iii) extend or renew for one or more periods
(whether or not longer than the original period), alter, increase or
exchange any of the Senior Interests, or release or compromise any
obligation of any nature with respect to any of the Senior Interests; (iv)
amend, supplement, amend and restate, or otherwise modify any Program
Document to which it is a party; 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 Interests, 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.
(i) The Holder hereby waives: (i) notice of acceptance of these
Subordination Provisions by any of the Senior Parties; (ii) notice of the
existence, creation, non-payment or non-performance of all or any of the
Senior Interests; and (iii) all diligence in enforcement, collection or
protection of, or realization upon, the Senior Interests, or any thereof,
or any security therefor.
-5- Xxxxxx Purchase Note
390
(j) These Subordination Provisions constitute a continuing offer from
TRI to all Persons who become the holders of, or who continue to hold,
Senior Interests; and these Subordination Provisions are made for the
benefit of the Senior Parties, and the Trustee may proceed to enforce such
provisions on behalf of each of such Persons.
8. General. No failure or delay on the part of the Holder in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No amendment,
modification or waiver of, or consent with respect to, any provision of this
Note shall in any event be effective unless (a) the same shall be in writing and
signed and delivered by TRI and Xxxxxx, and (b) all consents required for such
actions under the Program Documents shall have been received by the appropriate
Persons.
9. Limitation on Interest. Notwithstanding anything in this Note to the
contrary, TRI shall never be required to pay unearned interest on any amount
outstanding hereunder, and shall never be required to pay interest on the
principal amount outstanding hereunder, at a rate in excess of the maximum
nonusurious interest rate that may be contracted for, charged or received under
applicable federal or state law (such maximum rate being herein called the
"Highest Lawful Rate"). If the effective rate of interest which would otherwise
be payable under this Note would exceed the Highest Lawful Rate, or the Holder
shall receive any unearned interest or shall receive monies that are deemed to
constitute interest which would increase the effective rate of interest payable
by TRI under this Note to a rate in excess of the Highest Lawful Rate, then (a)
the amount of interest which would otherwise be payable by TRI under this Note
shall be reduced to the amount allowed by applicable law, and (b) any unearned
interest paid by TRI or any interest paid by TRI in excess of the Highest Lawful
Rate shall be refunded to TRI.
-6- Xxxxxx Purchase Note
391
Without limitation of the foregoing, all calculations of the rate of interest
contracted for, charged or received by the Holder under this Note that are made
for the purpose of determining whether such rate exceeds the Highest Lawful Rate
shall be made, to the extent permitted by applicable usury laws (now or
hereafter enacted), by amortizing, prorating and spreading in equal parts during
the actual period during which any amount has been outstanding hereunder all
interest at any time contracted for, charged or received by Xxxxxx in connection
herewith. If at any time and from time to time (i) the amount of interest
payable to the Holder on any date shall be computed at the Highest Lawful Rate
pursuant to the provisions of the foregoing sentence, and (ii) in respect of any
subsequent interest computation period the amount of interest otherwise payable
to the Holder would be less than the amount of interest payable to the Holder
computed at the Highest Lawful Rate, then the amount of interest payable to the
Holder in respect of such subsequent interest computation period shall continue
to be computed at the Highest Lawful Rate until the total amount of interest
payable to the Holder shall equal the total amount of interest which would have
been payable to the Holder if the total amount of interest had been computed
without giving effect to the provisions of the foregoing sentence.
10. No Negotiation. Subject to Section 12, this Note is not negotiable.
11. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
12. Security Interest. Xxxxxx may grant a security interest in or otherwise
pledge this Note as security (and endorse this Note to the order of such secured
party or pledgee), and any Person to whom such security interest is granted or
to whom this Note is pledged shall be bound by, and for all purposes takes this
Note subject to, the restrictions and other provisions (including the
Subordination Provisions) set forth herein.
-7- Xxxxxx Purchase Note
392
13. Captions. Paragraph captions used in this Note are provided solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Note.
-8- Xxxxxx Purchase Note
393
IN WITNESS WHEREOF, TRI has caused this Note to be signed and delivered by
its duly authorized officer as of the date first above written.
THERMADYNE RECEIVABLES INC.
By: /s/ XXXXXXX X. XXXX
-------------------------------
Name: XXXXXXX X. XXXX
Title: VICE PRESIDENT, TREASURER
AND ASSISTANT SECRETARY
-9- Xxxxxx Purchase Note
394
Tab 8
395
================================================================================
PLACEMENT AGREEMENT
dated as of January 31, 2000
among
THERMADYNE MFG. LLC
THERMADYNE RECEIVABLES, INC.,
and
ABN AMRO INCORPORATED
================================================================================
396
PLACEMENT AGREEMENT
January 31, 2000
ABN AMRO Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Thermadyne Mfg. LLC, a Delaware limited liability company
("Thermadyne"), and Thermadyne Receivables, Inc., a Delaware corporation and
subsidiary of Thermadyne ("TRI"), hereby agree with you, as placement agent (the
"Placement Agent"), as follows:
SECTION 1. Definitions. Unless the context requires otherwise,
capitalized terms used but not defined in this Placement Agreement (this
"Agreement") shall have the meanings assigned to those terms in Annex I to the
Receivables Participation Agreement dated as of January 31, 2000 (as the same
may be amended or modified from time to time, the "RPA"), between TRI, as
Transferor, and The Bank of New York, as Trustee.
SECTION 2. Issuance and Sale of the Certificates.
(a) TRI hereby appoints the Placement Agent to act as its exclusive
agent in connection with the offer and sale of the Certificates and the
Placement Agent hereby accepts such appointment subject to the terms and
conditions set forth herein. Without limiting anything in the preceding
sentence, TRI agrees that the Placement Agent shall have the right to use one or
more of its Affiliates to place the Certificates. Each of TRI, Thermadyne and
the Placement Agent hereby agrees that the Placement Agent shall have no
obligation to purchase or to arrange for the sale of, for the account of TRI,
the Certificates and in placing the Certificates the Placement Agent shall be
entitled to rely on the agreements, representations, warranties and covenants of
TRI and Thermadyne, as applicable, contained herein and the information
contained in the Offering Memorandum.
(b) In connection with the sale of the Certificates, TRI and Thermadyne
have prepared a preliminary offering memorandum dated November 3, 1999 (as
amended or supplemented from time to time and including all attachments thereto,
the "Preliminary Offering Memorandum") and a final offering memorandum dated
January 31, 2000 (as amended or supplemented from time to time and including all
attachments thereto, the "Offering Memorandum"). The Certificates will be
offered and sold by TRI without being registered under the Securities Act in
reliance on exemptions provided therein.
397
(c) Each of Thermadyne and TRI hereby expressly authorizes the
Placement Agent to use and distribute the Preliminary Offering Memorandum and
the Offering Memorandum in connection with the offer and sale of the
Certificates. Each of TRI and Thermadyne hereby authorizes, ratifies and affirms
any and all preliminary distributions of the Preliminary Offering Memorandum by
the Placement Agent on or prior to the date hereof. The Placement Agent agrees
to deliver the Offering Memorandum (along with any amendments or supplements
thereto that have been provided to the Placement Agent) to each Person to whom
it arranges a sale of a Certificate or Certificates in connection with this
Agreement concurrently with or prior to the time the Placement Agent delivers a
written confirmation of the sale of such Certificate or Certificates to such
Person.
(d) Each of Thermadyne, TRI and the Placement Agent agrees that TRI
will sell and the Placement Agent will place the Certificates only to Persons
whom the Placement Agent reasonably believes to be Qualified Institutional
Buyers, or to a limited number of other institutional Accredited Investors
(defined in Rule 501(a)(1), (2), (3) and (7) under Regulation D), in each case
only in private sales exempt from registration in reliance on the exemption
provided Section 4(2) under the Securities Act, or to Persons outside the United
States of America in transactions in reliance on Regulation S.
SECTION 3. Representations and Warranties of Thermadyne and TRI.
Thermadyne and TRI represent and warrant, jointly and severally, to the
Placement Agent that as of the Closing Date (or where the representations and
warranties relate to an earlier date, as of such earlier date):
(a) None of the Preliminary Offering Memorandum, the Offering
Memorandum or any amendment or supplement thereto as of the respective dates
thereof and at all times subsequent thereto up to the Closing Date contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this subsection do not apply to
statements or omissions made in reliance upon and in conformity with the
information described in Section 13 and any other information that is furnished
to TRI in writing by the Placement Agent after the date hereof expressly for use
in any amendment or supplement to the Offering Memorandum.
(b) The Certificates, the Program Documents and the businesses of each
of Thermadyne and TRI each conforms in all material respects to the respective
descriptions thereof contained in the Offering Memorandum.
(c) The statistical and market-related data included in the Offering
Memorandum are based on or derived from sources that Thermadyne and TRI believe
to be reliable and accurate in all material respects. The information concerning
the Receivables that is included in the Offering Memorandum presents fairly in
all material respects the information purported to be stated therein. There has
been no material adverse change in the delinquency, Dilution, loss and
-2-
398
other information with respect to the Receivables from that set forth in the
Offering Memorandum.
(d) Each of Thermadyne, Xxxxxx, the Sellers and TRI is duly organized
and validly existing and in good standing under the laws of the jurisdiction of
its formation and has full power and authority to own its properties and to
conduct its business as the properties presently are owned and the business
presently is conducted by it. Each of the Xxxxxxx, Xxxxxx and TRI had at all
relevant times, and now has, all necessary power, authority and legal right to
acquire, own and transfer, in the manner contemplated by the Program Documents,
(i) in the case of the Sellers and Xxxxxx, the Acquired Assets and the Purchased
Assets, respectively, and (ii) in the case of TRI, the Transferred Assets.
(e) Each of Thermadyne, the Xxxxxxx, Xxxxxx and TRI is duly qualified
to do business and is in good standing as a foreign entity (or is exempt from
such requirements) and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of its
business requires qualification, licenses or approvals except where the failure
so to qualify, to obtain such licenses and approvals or to preserve and maintain
the qualification, licenses or approvals could not reasonably be expected to
have a Material Adverse Effect.
(f) TRI has all necessary power and authority to issue, execute and
deliver the Certificates. Each Certificate has been duly and validly authorized
by TRI, and from and after the date on which each Certificate is executed by TRI
and authenticated by the Trustee in accordance with the terms of the RPA and
delivered to and paid for by the initial Investors pursuant to Section 4 hereof,
will be validly issued and outstanding and will constitute the valid and binding
obligation of TRI, enforceable against TRI in accordance with its terms, except
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, including principles of commercial
reasonableness, good faith and fair dealing, regardless of whether
enforceability is considered in a proceeding in equity or at law. Each
Certificate is entitled to the benefits of the RPA.
(g) Each of Thermadyne, Xxxxxx, the Sellers and TRI, as applicable, (i)
has all necessary power and authority to execute and deliver this Agreement and
the Program Documents to which it is a party and to perform its obligations
hereunder or thereunder and (ii) has duly authorized (by all necessary action)
the execution, delivery and performance of this Agreement and the Program
Documents to which it is a party and the consummation of the transactions
contemplated hereunder or thereunder.
(h) Each of the Program Documents to which Thermadyne, Xxxxxx, a Seller
or TRI is a party has been duly executed and delivered by such party and
constitutes the legal, valid and binding agreement of such party, enforceable
against it in accordance with the terms thereof, except 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
-3-
399
equity, including principles of commercial reasonableness, good faith and fair
dealing, regardless of whether enforceability is considered in a proceeding in
equity or at law.
(i) This Agreement has been duly and validly executed and delivered by
Thermadyne and TRI.
(j) All authorizations, consents, orders and approvals of, or other
action by, any governmental authority that are required to be obtained by either
Thermadyne or TRI, and all notices to and filings with any governmental
authority that are required to be made by Thermadyne, Xxxxxx, a Seller or TRI,
as applicable, in connection with the due execution, delivery and performance by
such party of this Agreement and the Program Documents to which it is a party
and the consummation of the transactions contemplated hereby or thereby, have
been obtained or made and are in full force and effect, except where the failure
to obtain or make any such authorization, consent, order, approval, notice or
filing, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(k) The execution, delivery and performance of, and the consummation of
the transactions contemplated by this Agreement and the Program Documents by
each of Thermadyne, Xxxxxx, the Sellers and TRI, as applicable, will not (i)
conflict with, violate or result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time or both) a
default under, (A) the certificate of incorporation or the bylaws of Xxxxxx, a
Seller or TRI or the certificate of formation or limited liability company
regulations of Thermadyne, or (B) any indenture, loan agreement, mortgage, deed
of trust or other agreement or instrument to which Thermadyne, Xxxxxx, a Seller
or TRI, as applicable, is a party or by which Thermadyne, Xxxxxx, a Seller or
TRI, as applicable, or any of their respective properties is bound, (ii) result
in the creation or imposition of any adverse claim (other than any adverse claim
created in favor of Xxxxxx, TRI or the Trustee, as applicable, pursuant to the
Program Documents) upon any of the properties of Thermadyne, Xxxxxx, a Seller
or TRI, as applicable, or (iii) conflict with or violate any federal, state,
local or foreign law or any decision, decree, order, rule or regulation
applicable to Thermadyne, Xxxxxx, a Seller or TRI or any of their respective
properties of any governmental authority, which conflict, violation, breach,
default or adverse claim, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(l) Thermadyne has delivered to the Placement Agent complete and
correct copies of (i) the audited consolidated financial statements of
Thermadyne and Thermadyne's Subsidiaries for its fiscal year ended December 31,
1998 (the "Annual Statements"), and (ii) the unaudited consolidated balance
sheet of Thermadyne and Thermadyne's Subsidiaries as of September 30, 1999, the
related consolidated statements of operations for the three- and nine-month
periods then ended and the related statement of cash flows for the nine-month
period then ended, in each case as filed with the Securities Exchange
Commission. Each item listed above shall have been reviewed by Ernst & Young
LLP, an independent public accounting firm within the meaning of the Securities
Act, in accordance with GAAP consistently applied (subject to normal year-end
adjustments in the case of the statements referred to in clause (ii) above) and
shall present fairly
-4-
400
in all material respects the financial position, results of operations and cash
flows of Thermadyne and its consolidated Subsidiaries at the dates and for the
periods to which they relate.
(m) Since the date of the Annual Statements, (i) there has been no
material adverse change in the condition, financial or otherwise, of the
earnings, business affairs or business prospects of Thermadyne, Xxxxxx, the
Sellers or TRI whether or not arising in the ordinary course of business and
(ii) there have been no transactions, other than the transactions contemplated
hereby or by the Program Documents, entered into by Thermadyne, Xxxxxx, the
Sellers or TRI that are material with respect to Thermadyne and its Subsidiaries
and that would be required to be disclosed under applicable law in connection
with the offering, sale or resale of the Certificates.
(n) Except as described in Schedule I, (i) there is no action, suit,
proceeding or investigation pending or, to the best knowledge of either
Thermadyne or TRI, threatened against them, Xxxxxx or any Seller before any
court, regulatory body, arbitrator, administrative agency or other tribunal or
governmental instrumentality and (ii) none of Thermadyne, Xxxxxx, a Seller nor
TRI is subject to any order, judgment, decree, injunction, stipulation or
consent order of or with any court or other governmental authority that, in the
case of each of clauses (i) and (ii), (A) asserts the invalidity of this
Agreement or the Program Documents, (B) seeks any determination or ruling that
would materially and adversely affect the performance by Thermadyne, Xxxxxx or
any Seller or TRI, as applicable, of its obligations under this Agreement or any
Program Document or the validity or enforceability of this Agreement or any
Program Document, (C) seeks to affect adversely the income tax attributes of the
transfers occurring pursuant to the Program Documents under the Code or any
state income tax system or (D) if adversely determined, individually or in the
aggregate for all such actions, suits, proceedings and investigations could
reasonably be expected to have a Material Adverse Effect.
(o) Neither this Agreement nor any transaction contemplated herein or
in the Offering Memorandum will result in a violation of, or give rise to an
obligation on the part of any Investor to register, file or give notice under,
Regulations T, U or X of the Board or any other regulation issued by the Board
pursuant to the Exchange Act each, as in effect on the Closing Date.
(p) Thermadyne, Xxxxxx, the Sellers and TRI are not, and are not
controlled by, an investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended.
(q) None of Thermadyne, Xxxxxx, the Sellers, TRI or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D) has directly,
or through any agent, (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of any "security" (as defined in the Securities
Act) that is or will be integrated with the sale of the Certificates in a manner
that would require the registration under the Securities Act of the offering of
the Certificates or (ii) assuming the accuracy of the representations and
warranties of the Placement Agent in Section 9, engaged in any form of general
solicitation or general advertising in connection with
-5-
401
the offering of the Certificates (as those terms are used in Regulation D) or in
any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(r) None of Thermadyne, TRI, any of their respective Affiliates or any
Person acting on their behalf has engaged in any directed selling efforts (as
that term is defined in Regulation S) with respect to any Certificates, and
Thermadyne, TRI and their respective Affiliates and any Person acting on its or
their behalf have complied with the offering restrictions requirement of
Regulation S.
(s) It is not necessary in connection with the offer, sale and delivery
of the Certificates in the manner contemplated by this Agreement to register any
of the Certificates under the Securities Act or to qualify the RPA or any other
Program Document under the Trust Indenture Act, as amended.
(t) On the Closing Date, (i) each of the representations and warranties
of Thermadyne, Xxxxxx, the Sellers and TRI that is set forth in the Program
Documents to which it is a party will be true and correct in all material
respects, and (ii) none of Thermadyne, Xxxxxx, the Sellers or TRI will be in
breach of any covenant or agreement set forth in any Program Document to which
it is a party.
(u) No event has occurred and is continuing that constitutes, or with
the passage of time or the giving of notice or both would constitute, a
Liquidation Event or a Servicer Default.
(v) The Certificates meet the eligibility requirements of Rule
144A(d)(3).
(w) Neither TRI nor Thermadyne nor any of their respective Affiliates
nor any Person acting on behalf of any of them has made offers or sales of
securities under circumstances that would require registration of the
Certificates under the Securities Act.
SECTION 4. Purchase, Sale and Delivery of the Certificates. Subject to
the terms and conditions herein set forth, TRI agrees to sell to, and the
Placement Agent agrees to use its reasonable efforts to place with the Investors
the Certificates in the aggregate principal amount of $45,000,000 at the
purchase price of $45,000,000. The Certificates that have been placed by the
Placement Agent shall be delivered to the Trustee as custodian for the
registered holder, Cede, as nominee for DTC (against payment by or on behalf of
the Investors of the purchase price therefor by wire transfer of same day funds
to the account or accounts specified in writing by TRI not less than one (1)
Business Day prior to the Closing Date) at the Chicago offices of Xxxxx, Xxxxx &
Xxxxx, at 10:00 a.m., Chicago time on January 31, 2000 (the "Closing Date") in
respect of Certificates in an aggregate principal amount of $45,000,000 or at
such other place, time or date as the Placement Agent. Thermadyne and TRI may
agree upon. TRI will make copies of the Certificates available for inspection by
the Placement Agent at the offices of the Placement Agent in New York, New York
at least two (2) Business Days prior to the Closing Date.
-6-
402
In consideration of such placement, TRI and Thermadyne jointly and
severally agree to pay the Placement Agent a non-refundable fee of $675,000 on
the Closing Date.
SECTION 5. Placement by the Placement Agent. TRI and Thermadyne agree
to assist the Placement Agent in any marketing of the Certificates and (promptly
upon request) to provide all information reasonably deemed necessary by the
Placement Agent in the marketing of the Certificates. In addition, TRI and
Thermadyne will use their best efforts to make appropriate officers and
representatives of TRI and Thermadyne available to participate in the
information meetings for potential investors at such times and places as the
Placement Agent may reasonably request. Further, each of TRI and Thermadyne
agrees, upon the request of the Placement Agent, to use reasonable efforts to
cause Ernst & Young LLP to deliver to any potential purchaser of a Certificate
an agreed upon procedures letter comparable to the comfort letter described in
Section 8(j).
SECTION 6. Covenants of Thermadyne and TRI. Each of Thermadyne and TRI
jointly and severally covenants and agrees with the Placement Agent that:
(a) Neither Thermadyne nor TRI will amend or supplement the Offering
Memorandum unless, within five Business Days (or such shorter number of days as
the Placement Agent shall agree) prior to the proposed amendment or supplement,
the Placement Agent shall have been furnished a copy thereof for review and
shall have given written consent with respect to such proposed amendment or
supplement.
(b) Thermadyne and TRI will take any action for the qualification or
exemption of the Certificates in connection with the offer, sale and resale of
the Certificates under the securities or "Blue Sky" laws of any jurisdiction
that the Placement Agent shall reasonably request and will pay all reasonable
expenses (including reasonable fees and disbursements of counsel) incurred by
the Placement Agent in connection with such qualification or exemption or in
connection with the determination of the eligibility of the Certificates for
investment under the laws of any jurisdiction as the Placement Agent may
designate from time to time. As long as the Certificates remain outstanding,
Thermadyne and TRI will arrange for the filing and making of, and will pay all
fees applicable to, any statements and reports and renewals of registration
necessary in order to continue to qualify or exempt the Certificates for
secondary market transactions in the jurisdictions in which the Certificates
were originally registered or exempted for sale. If the Placement Agent shall
pay any of the fees or expenses referred to in this subsection, Thermadyne and
TRI shall promptly reimburse the Placement Agent for such amount as provided in
Section 7.
(c) If, at any time prior to the completion of the distribution of the
Certificates, any event occurs or condition exists as a result of which it is
necessary or desirable, in the opinion of the Placement Agent, TRI or
Thermadyne, to amend or supplement the Offering Memorandum in order that the
Offering Memorandum will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made or
existing at the time the Offering
-7-
403
Memorandum is delivered to a prospective purchaser of any legal or beneficial
interest in the Certificates, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Offering Memorandum to comply
with applicable law. Thermadyne and TRI will promptly notify the Placement Agent
thereof and will prepare and deliver to the Placement Agent, at the expense of
Thermadyne and TRI, an amendment of or supplement to the Offering Memorandum
that corrects such statement or omission or effects such compliance.
(d) Thermadyne and TRI will, without charge, provide to the Placement
Agent as many copies of the Offering Memorandum and any amendment thereof or
supplement thereto as the Placement Agent may reasonably request.
(e) TRI shall apply the net proceeds from the sale of the Certificates
solely as set forth in the "Use of Proceeds" section of the Offering Memorandum.
Thermadyne hereby agrees that it will not, and will cause any of its
Subsidiaries not to, use the proceeds of the sale of the Certificates or any
part thereof, directly or indirectly, to purchase or carry any "margin security"
(as defined in Regulations T, U or X issued by the Board) or to reduce or retire
any indebtedness originally incurred to purchase any margin security.
(f) None of Thermadyne, TRI or any of their respective Subsidiaries or
Affiliates will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any "security" (as defined in the Securities Act) that
could be integrated with the sale of the Certificates in a manner that would
require the registration of the Certificates under the Securities Act.
(g) None of Thermadyne, TRI, any of their respective Subsidiaries or
Affiliates or any Person acting on their behalf will engage in any directed
selling efforts (as such term is defined in Regulation S) with respect to any of
the Certificates, and each of Thermadyne, TRI, their respective Subsidiaries or
Affiliates and any Person acting on their behalf will comply with the offering
restrictions requirement of Regulation S.
(h) Thermadyne and TRI will not, and will not permit any of their
respective Subsidiaries or Affiliates to, solicit any offer to buy or offer to
sell the Certificates by means of any form of general solicitation or general
advertising (as such terms are used in Regulation D or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act.
(i) Thermadyne, TRI or any of their respective Subsidiaries or
Affiliates shall not engage any Person to assist in the placement or sale of the
Certificates other than the Placement Agent or otherwise contact or solicit
potential investors to purchase any Certificate.
(j) So long as any of the Certificates are "restricted securities"
within the meaning of Rule 144(a)(3), TRI shall, unless it becomes subject to
(and complies with) the reporting requirements of Section 13 or 15(d) of the
Exchange Act or Rule 12g3-2(b) thereunder, provide to any holder of the
Certificates, or to any prospective purchaser of the Certificates designated by
a holder, upon the request of such holder or prospective purchaser, any
information required to
-8-
404
be provided by Rule 144A(d)(4). This covenant is intended to be for the benefit
of the holders, and prospective purchasers designated by such holders, from time
to time of the Certificates.
(k) Thermadyne and TRI will use their best efforts to (i) permit the
Certificates to be designated as Private Offerings, Resale and Trading through
Automated Linkages ("PORTAL") securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
relating to trading in the PORTAL market; (ii) permit the Certificates to be
eligible for clearance and settlement through DTC; and (iii) permit the
Certificates to be eligible for clearance and settlement through CEDEL and
Euroclear.
(l) Until all principal of, interest on, or any other amount due under
the Certificates shall have been paid in full, TRI shall deliver or cause to be
delivered to the Placement Agent upon its request each Settlement Statement
(and, if requested by the Placement Agent, each Daily Report) contemporaneously
as the same is delivered to the Trustee pursuant to the RPA.
(m) Neither TRI nor Thermadyne shall, nor shall they permit any of
their respective Affiliates to, resell any of the Certificates that have been
acquired by any of them.
(n) None of TRI, Thermadyne, any of their respective Affiliates, or any
Person acting on behalf of any of them shall make any offers or sales of
securities (as defined under the Securities Act) under circumstances that would
require the registration of the Certificates under the Securities Act.
(o) During the period commencing on the date hereof and ending on the
Closing Date, TRI and Thermadyne will ensure that no other borrowings or debt
instruments or securities similar to the Certificates (whether issued or
guaranteed by TRI or Thermadyne) are either placed or syndicated, directly or on
their behalf, in the international or U.S. capital markets, in any manner which
would, in the reasonable judgment of the Placement Agent, have a material
adverse effect on the successful placement of the Certificates, unless mutually
agreed to in writing by the Placement Agent, TRI and Thermadyne.
SECTION 7. Expenses. (a) Each of Thermadyne and TRI agrees, jointly and
severally, to pay all reasonable costs and expenses incurred by the Placement
Agent in connection with the placement of the Certificates, including (without
limitation) all reasonable costs and expenses incident to (i) the conduct of due
diligence and examination of the Receivables and activities of Thermadyne, each
Seller, Xxxxxx and TRI, (ii) the preparation, printing, word processing or other
production of documents with respect to such transactions, including any costs
in respect of the Program Documents, the Preliminary Offering Memorandum and the
Offering Memorandum and any amendment thereof or supplement thereto, and any
"Blue Sky" memorandum, (iii) all arrangements relating to the delivery to the
Placement Agent of copies of the foregoing documents, (iv) the reasonable fees
and disbursements of the counsel retained by the Placement Agent, (v) the
reasonable fees and expenses of outside tax, accounting and other consultants
and advisors to the Placement Agent retained with Thermadyne's prior approval.
(vi) reasonable travel, audit, publicity and other out-of-pocket fees and
expenses of the Placement Agent,
-9-
405
(vii) preparation, issuance and delivery of the Certificates, (viii) trustee's
fees and expenses, including all reasonable expenses of counsel retained by the
Trustee, (ix) the qualification of the Certificates under state securities and
"Blue Sky" laws (including filing fees and fees and all reasonable disbursements
of counsel for the Placement Agent relating thereto), (x) all reasonable
expenses in connection with any meetings with prospective investors in the
Certificates, (xi) all reasonable expenses and fees (including fees and expenses
of listing and paying agents) incurred in connection with the application for
use of any clearing or similar system, quotation of the Certificates on any
market and (xii) fees charged by the Rating Agency and its counsel for the
rating of the Certificates. Thermadyne and TRI acknowledge that the Placement
Agent is not responsible for any fees, costs and expenses set forth in this
section. It is specifically agreed by each party hereto that the obligations of
Thermadyne and TRI provided in this Section 7 shall be absolute and
unconditional, and shall be performed by Thermadyne or TRI regardless of whether
the Closing Date shall take place during the term of the Program Documents.
(b) The amounts payable under each clause of Section 7(a) shall be
cumulative, and payment of amounts referred to in one clause shall not reduce
amounts payable under another clause.
SECTION 8. Conditions of the Placement Agent's Obligations. The
obligations of the Placement Agent to place the Certificates with Investors
shall be subject to the following conditions:
(a) TRI shall have (i) caused all UCC financing statements required to
perfect the first priority ownership or security interest of the Investors and
the Trustee in the Transferred Assets, free and clear of all Liens (other than
Permitted Liens and Liens created by the Program Documents) to be duly filed in
the manner required by the laws of each appropriate jurisdiction and (ii) paid,
or caused to be paid, all transfer taxes, documentary stamp taxes and filing
fees incurred in connection therewith.
(b) All corporate and other proceedings in connection with the
transactions contemplated herein and in the Program Documents and all documents
and certificates incident thereto shall be reasonably satisfactory in form and
substance to the Placement Agent and its counsel, and the Placement Agent shall
have received any other documents and certificates incident to the transactions
that the Placement Agent or its counsel shall reasonably request. The Placement
Agent or its counsel shall have received on the Closing Date certified copies of
all documents evidencing corporate action taken by each of Thermadyne, Xxxxxx,
the Sellers, TRI and the Trustee to approve the execution and delivery of this
Agreement and the Program Documents to which they are a party and the
consummation of the transactions contemplated hereby and thereby.
(c) Immediately prior to the sale of the Certificates, the Certificates
shall have been executed by TRI and authenticated by or on behalf of the
Trustee, and each of the RPA, the RPSAs, this Agreement, and the other Program
Documents that are to be executed and delivered on or prior to the Closing Date
shall have been executed and delivered. The Placement Agent
-10-
406
and the Trustee shall have received on the Closing Date a fully executed
counterpart original and any required conformed copies of all Program Documents
delivered on or prior to the Closing Date, and the Trustee shall have received
the Certificates.
(d) The Placement Agent or its counsel shall have received on the
Closing Date incumbency certificates executed by Authorized Officers of
Thermadyne, Xxxxxx, the Sellers and TRI certifying the identities and
signatures of the officers who executed each of the Program Documents to which
Thermadyne, Xxxxxx, the Sellers or TRI, as the case may be, is a party.
(e) Upon consummation of the transactions contemplated in the Program
Documents that are to occur on or prior to the Closing Date, TRI shall have a
net worth of not less than the amount required by the RPA, as certified by an
Authorized Officer of TRI.
(f) Intentionally deleted.
(g) The Certificates shall have been rated "AAA" by the Rating Agency,
such rating shall be in full force and effect and the Placement Agent shall have
received on the Closing Date a letter from the Rating Agency dated on or before
the Closing Date to such effect.
(h) Subsequent to the respective dates as of which information is given
in the Offering Memorandum, there shall not have occurred (i) any material
adverse change, or any development involving a prospective material adverse
change, in the condition (financial or otherwise) or in the earnings, business,
operations or business prospects of Thermadyne and its Subsidiaries, taken as a
whole, or of TRI, whether or not arising in the ordinary course of business,
(ii) any other event or occurrence that could reasonably be expected to have a
Material Adverse Effect, (iii) a suspension or material limitation in trading in
any securities issued by Thermadyne or any of its Affiliates, or in securities
generally, on any securities exchange or the establishment of minimum prices on
any such exchange, (iv) a general moratorium on commercial banking activities
declared by either federal or New York State authorities, (v) any downgrading in
the rating accorded securities issued by Thermadyne or any of its Affiliates by
any "nationally recognized statistical rating organization." as that term is
defined for purposes of Rule 436(g) under the Securities Act, or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of Thermadyne or its Affiliates (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of the rating), (vi) any outbreak or
escalation of major hostilities in which the United States of America is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency that in the reasonable judgment of the
Placement Agent makes it inadvisable to proceed with the solicitation of offers
to purchase the Certificates, or (vii) any material adverse change in financial,
political or economic conditions that in the reasonable judgment of the
Placement Agent makes it inadvisable to purchase the Certificates or to proceed
with the solicitation of offers to purchase the Certificates.
(i) On the Closing Date, the Placement Agent shall have received
opinions, dated the Closing Date, addressed to the Placement Agent and
satisfactory to its counsel, of (i) Weil,
-11-
407
Gotshal & Xxxxxx LLP, special counsel to Thermadyne and TRI, (A) as to the "true
sale" of the Receivables and the substantive consolidation of TRI, (B) as to
corporate, securities and other matters and (C) as to characterization of the
Investors' interest as indebtedness and not as equity interest in an association
taxable as a corporation for federal income tax purposes and (ii) Sonnenschein,
Nath & Xxxxxxxxx, counsel to Thermadyne and TRI, (A) as to perfection of the
Trustee's interest in the Transferred Assets and other UCC matters and (B) as to
characterization of the Investors' interests as debt and not as equity interests
in an association taxable as a corporation for state tax purposes.
(j) The Placement Agent shall have received from Ernst & Young LLP a
comfort letter with respect to the Offering Memorandum dated the Closing Date,
addressed to the Placement Agent and in form and substance satisfactory to the
Placement Agent and its counsel.
(k) The Placement Agent shall have received an opinion from Xxxxx,
Xxxxx & Xxxxx, in form and substance satisfactory to the Placement Agent, as to
any matters as it may require.
(l) The representations and warranties of each of Thermadyne and TRI
contained in this Agreement and in the Program Documents to which it is a party
shall be true and correct in all material respects as of the date hereof and as
of the Closing Date (other than representations and warranties made as of a
specific date, which shall be true and correct in all material respects as of
such specific date); Thermadyne and TRI shall have performed all covenants and
agreements and satisfied all conditions on their respective parts to be
performed or satisfied hereunder and under the Program Documents on or prior to
the Closing Date; subsequent to the date of the Annual Statements, there shall
have been no material adverse change in the business, condition (financial or
otherwise) or results of operations or business prospects of Thermadyne and its
Subsidiaries, taken as a whole, or of TRI; and no event shall have occurred and
no condition shall exist that would constitute a Liquidation Event or a Servicer
Termination Event under the RPA, either with or without notice or lapse of time
or both.
(m) Subsequent to the respective dates as of which information is
given in the Offering Memorandum, other than as contemplated by the Offering
Memorandum, none of Thermadyne and its Subsidiaries, taken as a whole, or TRI
shall have entered into any transactions that are material to the business,
condition (financial or otherwise) or results of operations or business
prospects of Thermadyne and its Subsidiaries, taken as a whole, or TRI.
(n) The Placement Agent shall have received a certificate of each of
Thermadyne, Xxxxxx, each Seller and TRI, dated the Closing Date, signed on
behalf of such company by an Authorized Officer, to the effect that:
(i) The representations and warranties of each of Thermadyne,
Xxxxxx, each Seller and TRI contained in this Agreement and in the
Program Documents to which each is a party are true and correct in all
material respects as of the Closing Date as if made on such date (other
than representations and warranties made as of a specific date, which
shall be true and correct in all material respects as of such specific
date); Thermadyne,
-12-
408
Xxxxxx, each Seller and TRI have performed all covenants and agreements
and satisfied all conditions on their respective parts to be performed
or satisfied hereunder and under the Program Documents on or prior to
the Closing Date; subsequent to the date of the Annual Statements,
there has been no material adverse change in the business, condition
(financial or otherwise) or results of operations or business prospects
of Thermadyne and its Subsidiaries, taken as a whole, or TRI; and no
event has occurred and no condition exists that would constitute a
Liquidation Event or a Servicer Termination Event, either with or
without notice or lapse of time or both.
(ii) Upon consummation of the transactions contemplated in the
Program Documents on or prior to the Closing Date, TRI shall have a net
worth of not less than the amount required by the RPA.
(iii) Subsequent to the respective dates as of which
information is given in the Offering Memorandum, there has not
occurred (A) any material adverse change, or any development involving
a prospective material adverse change, in the condition (financial or
otherwise) or in the earnings, business, operations or business
prospects of Thermadyne and its Subsidiaries, taken as a whole, or TRI,
whether or not arising in the ordinary course of business, or TRI, or
(B) any other event or occurrence that would have a Material Adverse
Effect.
(iv) Subsequent to the respective dates as of which
information is given in the Offering Memorandum, other than as
contemplated by the Offering Memorandum, none of Thermadyne and its
Subsidiaries, taken as a whole, or TRI has entered into any
transactions that are material to the business, condition (financial or
otherwise) or results of operations or business prospects of Thermadyne
and its Subsidiaries, taken as a whole, or TRI.
(o) The Placement Agent shall have received confirmation that the
Certificates have been designated for trading as PORTAL Securities by the
National Association of Securities Dealers, Inc. and have been accepted for
clearance of secondary market trading by DTC, Euroclear and CEDEL.
(p) Thermadyne and TRI shall furnish to the Placement Agent (x) such
other agreements, instruments, documents, opinions, certificates, letters and
schedules as the Placement Agent or its counsel reasonably may request and (y)
originals and conformed copies of all opinions, certificates, letters,
schedules, agreements, documents and instruments delivered pursuant to this
Agreement in the quantities that the Placement Agent shall reasonably request.
SECTION 9. Representations and Covenants of the Placement Agent.
(a) The Placement Agent represents and warrants to Thermadyne and TRI
that it has not offered or sold, and will not offer or sell, any of the
Certificates (i) within the United States, except to Persons reasonably believed
by it to be Qualified Institutional Buyers and to a limited
-13-
409
number of other Institutional Accredited Investors, in each case in reliance on
the exemption from registration provided in Section 4(2) of the Securities Act
or (ii) outside the United States, to non-U.S. Persons in accordance with Rule
903 of Regulation S. The Placement Agent agrees that neither it, its Affiliates
nor any Persons acting on its or their behalf have engaged in or will engage in
any directed selling efforts (as such term is defined in Regulation S) with
respect to the Certificates. The Placement Agent further represents and warrants
that it has not entered into and will not enter into any contractual arrangement
with respect to the distribution of the Certificates, except with its Affiliates
or with the prior written consent of TRI.
(b) The Placement Agent agrees that, at or prior to confirmation of
sale of the Certificates pursuant to Regulation S, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Certificates from it during the restricted
period a confirmation or notice to substantially the following effect:
"The Certificates covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered and sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their distribution
at any time or (ii) otherwise until 40 days after the later of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S under the Securities Act. Terms
used above have the meanings given to them by Regulation S."
(c) The Placement Agent represents and agrees that (A) it has not
offered or sold and will not offer or sell any of the Certificates in the United
Kingdom, by means of any document, other than to persons whose ordinary business
it is to buy or sell shares or debentures, whether as principal or agent (except
in circumstances which do not constitute an offer to the public within the
meaning of the Companies Act 1985), (B) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Certificates in, from or otherwise
involving the United Kingdom, and (C) it has only issued or passed on and will
only issue or pass on to any person in the United Kingdom any document received
by it in connection with the issue of the Certificates if that person is of a
kind described in Article 9(3) of the Financial Services Xxx 0000 (Investment
Advertisement) (Exemptions) Order 1988 or a person to whom the document may
otherwise lawfully be issued or passed on.
(d) The Placement Agent acknowledges that no action has been or will be
taken in any jurisdiction by TRI that would permit a public offering of the
Certificates, or possession or distribution of the Offering Memorandum or any
other offering material, in any country or jurisdiction where action for that
purpose is required. The Placement Agent will comply with all applicable laws
and regulations in each jurisdiction in which it purchases, offers, sells or
delivers notes or has in its possession or distributes any Offering Memorandum
or any other offering material. The Placement Agent will obtain by consent,
approval or permission required by it for the acquisition, offer, sale or
delivery by it of the Certificates under the laws and regulations in force in
any jurisdiction in which it makes any such acquisition, offer, sale or
delivery.
-14-
410
(e) The Placement Agent (i) has all necessary power and authority to
execute and deliver this Agreement and the Program Documents to which it is a
party and to perform its obligations hereunder or thereunder and (ii) has duly
authorized (by all necessary action) the execution, delivery and performance of
this Agreement and the Program Documents to which it is a party and the
consummation of the transactions contemplated hereunder or thereunder.
TRI confirms that it has authorized the Placement Agent to make or
cause to be made an application on its behalf for the Certificates to be
eligible for trading in the PORTAL Market. Each of TRI and Thermadyne agrees to
supply to the Placement Agent for delivery to PORTAL copies of the Offering
Memorandum and such other documents, information and undertakings necessary or
desirable to effect such designation.
SECTION 10. Indemnification and Contribution. (a) Thermadyne and TRI,
jointly and severally, agree to indemnify and hold harmless the Placement Agent,
its Affiliates, directors, officers, employees, agents, representatives and each
Person who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) the Placement Agent against any losses, claims,
damages or other liabilities, costs and expenses to which the Placement Agent or
any other indemnified party may become subject, insofar as any losses, claims,
damages or liabilities (or actions in respect thereof) relate to, arise out of
or are based upon:
(i) any untrue statement or alleged untrue statement
of any material fact contained in (A) the Preliminary
Offering Memorandum, the Offering Memorandum or any
amendment of or supplement to any of the foregoing or (B)
any application or other document, or any amendment thereof
or supplement thereto, executed by Thermadyne or TRI or
based upon written information furnished by or on behalf of
Thermadyne or TRI filed in any jurisdiction in order to
qualify the Certificates under the securities or "Blue Sky"
laws thereof or filed with any securities association or
securities exchange (each an "Application"), or
(ii) the omission or alleged omission to state, in
the Preliminary Offering Memorandum, the Offering
Memorandum, or any Application, a material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading,
and in each case will reimburse, as incurred, each indemnified party for any
reasonable legal or other reasonable expenses incurred in connection with
investigating, defending against or appearing as a third-party witness in
connection with any loss, claim, damage, liability or action; provided, however,
that Thermadyne and TRI will not be liable in any case under clause (i) or (ii)
to the extent that any loss, claim, damage or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in the Preliminary Offering Memorandum, Offering
Memorandum or any Application that, in the case of each of the foregoing, is
made in reliance upon and in conformity with the information described in
Section 13 or any other information that is furnished to TRI in writing by the
Placement Agent
-15-
411
after the date hereof expressly for use in any amendment or supplement to the
Offering Memorandum; and provided, further, that the foregoing indemnity,
insofar as it relates to the Preliminary Offering Memorandum or any amendments
or supplements thereto issued prior to the Offering Memorandum, shall not inure
to the benefit of the Placement Agent or their respective employees, directors,
agents, officers and representatives or to any Person who controls the Placement
Agent if the person asserting the loss, claim, damage or liability which gives
rise to such indemnity (the "Underlying Claimant") purchased Certificates
following solicitation by the Placement Agent if a copy of the Offering
Memorandum and any available amendments or supplements thereto were not sent or
given by the Placement Agent or on the Placement Agent's behalf to such
Underlying Claimant at or prior to the written confirmation of the sale of the
Certificates to such Underlying Claimant (unless such failure to so send or give
the Offering Memorandum and/or such amendments or supplements results from the
failure of TRI and Thermadyne to comply with Section 6(c)), and if the Offering
Memorandum together with any then available amendments or supplements thereto
would have cured the defect giving rise to such losses, claims, damages, or
liabilities.
Thermadyne and TRI shall not be liable under this section for any
settlement of any claim or action effected without their prior written consent,
which shall not be unreasonably withheld. Thermadyne and TRI shall not, without
the prior written consent of the Placement Agent, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought under this
section (whether or not the Placement Agent or any other indemnified party is an
actual or potential party to the claim, action, suit or proceeding) unless the
settlement, compromise or consent includes an unconditional release of the
Placement Agent and each other indemnified party described in this clause from
all liability arising out of the claim, action, suit or proceeding.
(b) The Placement Agent will indemnify and hold harmless each of
Thermadyne, TRI, their respective directors, officers, employees, agents and
representatives and each Person who controls (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) Thermadyne or TRI
against any losses, claims, damages or liabilities to which Thermadyne, TRI or
any other indemnified party may become subject, insofar as the losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the Preliminary Offering Memorandum, the Offering Memorandum or any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in the Preliminary Offering Memorandum, the
Offering Memorandum or any Application, necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with the information described in Section 13
and any other written information concerning the Placement Agent that is
furnished to Thermadyne or TRI after the date hereof by the Placement Agent
specifically for use in any amendment or supplement to the Offering Memorandum;
and, subject to the limitation set forth immediately preceding this clause, the
Placement Agent will reimburse, as incurred, any legal or other expenses
incurred by Thermadyne or TRI or any other indemnified party in
-16-
412
connection with investigating or defending against or appearing as a third-party
witness in connection with any loss, claim, damage, liability or action in
respect thereof. The Placement Agent shall not be liable under this section for
any settlement of any claim or action effected without its prior written
consent, which shall not be unreasonably withheld, conditioned or delayed.
(c) Promptly after receipt by an indemnified party under this section
of notice of the commencement of any action or proceeding for which an
indemnified party is entitled to indemnification under this section, the
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability under subsection (a) or (b) (as applicable)
unless and to the extent that the failure to notify results in the forfeiture by
the indemnifying party of substantial rights and defenses. If any action or
proceeding is brought that involves any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to the indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present that counsel with a
conflict of interest, (ii) the indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it that are
different from or additional to those available to the indemnifying party or to
other indemnified parties, or (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after receipt by the indemnifying
party of notice of the institution of the action or proceeding, then, in each
case, (A) the indemnifying party shall not have the right to direct the defense
of the action on behalf of the indemnified party or parties, (B) the indemnified
party or parties shall have the right to select separate counsel to defend the
action on behalf of the indemnified party or parties and (C) all costs and
expenses of each indemnified party in connection with the action or proceeding
shall be paid by the indemnifying party pursuant to subsection (a) or (b) (as
applicable).
After notice from the indemnifying party to the indemnified party of
the indemnifying party's election so to assume the defense thereof and approval
by the indemnified party of counsel appointed to defend the action, the
indemnifying party will not be liable to the indemnified party under this
section for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by the indemnified party in connection with
the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso at the end of the immediately
preceding paragraph or (ii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party. If the indemnifying party assumes the defense of any action
or proceeding, the indemnified party shall have the right to employ separate
counsel therein, and to participate in the defense thereof, but the fees and
expenses of its counsel shall be borne exclusively by the indemnified party
without any right or entitlement to reimbursement by an
-17-
413
indemnifying party or its Affiliates except as otherwise provided in the
preceding sentence and in the preceding paragraph.
(d) In circumstances in which the indemnity agreement provided for in
the preceding subsections is unavailable or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages or liabilities (or
actions in respect thereof), each indemnifying party, in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by the indemnified party as a result of losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Certificates or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in losses, claims, damages or
liabilities (or actions in respect thereof). It is the parties' intention that,
to the maximum extent permitted by applicable law, (A) the relative benefits
received by Thermadyne and TRI on the one hand and the Placement Agent on the
other shall be deemed to be in the same proportion as the total proceeds from
the offering (before deducting expenses) received by or on behalf of TRI bear to
the total discounts and commissions received by the Placement Agent with respect
to the offering, and (B) the relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by Thermadyne or TRI on the one
hand, or the Placement Agent on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in the
circumstances.
Notwithstanding any other provision of this subsection, the Placement
Agent shall not be obligated to make contributions hereunder that in the
aggregate exceed the total discounts, commissions and other compensation
received by it under this Agreement, less the aggregate amount of any damages
that it otherwise has been required to pay by reason of the untrue or alleged
untrue statements, or the omissions or alleged omissions to state, a material
fact. No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. For purposes of
this subsection, each affiliate, director, officer, employee, agent and
representative of each of the Placement Agent and each Person who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) the Placement Agent shall have the same rights to contribution as
the Placement Agent, and each affiliate, director, officer, employee, agent and
representative of Thermadyne and TRI and each Person who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
Thermadyne or TRI shall have the same rights to contribution as Thermadyne and
TRI.
SECTION 11. Survival: Scope of Liability. The respective
representations, warranties, agreements, covenants, indemnities and other
statements of Thermadyne, TRI, their respective
-18-
414
officers and the Placement Agent and its officers set forth in this Agreement or
made by or on behalf of any of them, respectively, pursuant to this Agreement
shall remain in full force and effect, regardless of (a) any investigation made
by or on behalf of Thermadyne, TRI, the Placement Agent or any of their
respective officers or directors, or any controlling Person referred to in
Section 10 and (b) delivery of and payment for the Certificates. The respective
agreements, covenants, indemnities and other statements set forth in Sections 7
and 10 shall remain in full force and effect regardless of any termination or
cancellation of this Agreement.
SECTION 12. Termination. This Agreement may be terminated in the sole
discretion of the Placement Agent by notice to Thermadyne and TRI given on or
prior to the Closing Date in the event that Thermadyne or TRI shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
their respective parts to be performed or satisfied hereunder at or prior
thereto or if, on or prior to the Closing Date:
(i) there shall have been, in the sole judgment of the
Placement Agent, any material adverse change, or any development
involving a material adverse change, in the business, condition
(financial or otherwise) or results of operations or business prospects
of Thermadyne and its Subsidiaries and Affiliates, taken as a whole, or
TRI, except in each case as described in or contemplated by the
Offering Memorandum (exclusive of any amendment or supplement thereto),
(ii) trading in any securities issued by Thermadyne or its
Affiliates, or in securities generally, on the New York Stock Exchange,
American Stock Exchange or NASDAQ National Market shall have been
suspended or minimum or maximum prices shall have been established on
any such exchange,
(iii) a banking moratorium shall have been declared by New York
or United States authorities, or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency, or (C) any material change in the financial
markets that, in the sole judgment of the Placement Agent, makes it
impracticable or inadvisable to proceed with the offering or the
delivery of the Certificates as contemplated by the Offering
Memorandum.
Termination of this Agreement pursuant to this section (a) shall be without
liability of any party to any other party except that the Placement Agent shall
be entitled to any fees and expenses payable, in each case in accordance with
Section 7.
SECTION 13. Information Supplied by the Placement Agent. The
statements set forth in Schedule II (to the extent such statements relate to the
Placement Agent) constitute the only information furnished by the Placement
Agent to Thermadyne and TRI for purposes of inclusion
-19-
415
in the Preliminary Offering Memorandum, the supplements thereto and the Offering
Memorandum.
SECTION 14. Notices. Unless otherwise provided herein, all notices
required under the terms and provisions hereof shall be in writing and either
delivered by hand, by mail or by facsimile, and any notice shall be effective
when received at the address or facsimile number (as applicable) specified
below:
If to TRI:
Thermadyne Receivables, Inc.
000 Xxxxx Xxxxxx Xxxx. Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Thermadyne:
Thermadyne Mfg. LLC
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Placement Agent:
ABN AMRO Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx van Bemmelen
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
ABN AMRO Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-20-
416
or at such other address or facsimile number as any party may designate from
time to time by notice duly given to the other parties in accordance with the
terms of this section.
SECTION 15. Successors; Joint or Several Obligations. (a) This
Agreement shall inure to the benefit of and be binding upon the Placement Agent,
Thermadyne, TRI and their respective successors and permitted assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any Person, other than the parties hereto, their respective successors and
the controlling Persons, Affiliates, directors, officers, employees, agents and
representatives referred to in Section 10 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto, their respective successors and
permitted assigns and said controlling Persons, Affiliates, directors, officers,
employees, agents and representatives and their heirs and legal representatives,
and for the benefit of no other Person. No purchaser of a beneficial interest in
the Certificates will be deemed a successor because of such purchase.
(b) It is understood and agreed that the obligations of Thermadyne and
TRI under this Agreement are joint and several obligations.
SECTION 16. Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which together shall constitute one and the same agreement.
SECTION 17. No Petition. The Placement Agent covenants and agrees that,
prior to the date that is one year and one day after the date on which all
Certificates are paid in full, it will not institute against, or join any other
Person in instituting against, TRI any insolvency proceeding (namely, any
proceeding of the type referred to in the definition of Insolvency Event in
Annex I to the RPA). The foregoing shall not limit the right of the Placement
Agent to file any claim in or otherwise take any action with respect to any such
insolvency proceeding that was instituted against TRI by any Person other than
the Placement Agent.
SECTION 18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of laws principles.
SECTION 19. Submission to Jurisdiction. EACH PARTY HERETO HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW
YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
AND HEREBY (A) IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN THE STATE OR FEDERAL COURT AND (B)
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE
-21-
417
MAINTENANCE OF THE ACTION OR PROCEEDING. THE PARTIES IRREVOCABLY CONSENT TO
THE SERVICE OF ANY AND ALL PROCESS IN ANY ACTION OR PROCEEDING BY THE MAILING OF
COPIES OF THE PROCESS TO THE PARTIES (AS APPLICABLE) AT THEIR ADDRESSES
SPECIFIED HEREIN. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY
HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHT OF ANY PARTY HERETO TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OR ALL
OF THE OTHER PARTIES OR ANY OF THEIR RESPECTIVE PROPERTIES IN THE COURTS OF ANY
OTHER JURISDICTION.
SECTION 20. Amendments. This Agreement may be amended at any time upon
the written consent of each of the parties hereto.
SECTION 21. Severability of Provisions. If any one or more of the
agreements, provisions or terms of this Agreement shall for any reason
whatsoever be held invalid, then the unenforceable agreements, provisions or
terms shall be deemed severable from the remaining agreements, provisions or
terms of this Agreement and shall in no way affect the validity or
enforceability of the other agreements, provisions or terms of this Agreement.
[Remainder of the Page Intentionally Left Blank]
-22-
418
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among Thermadyne, TRI
and the Placement Agent.
Very truly yours,
THERMADYNE MFG. LLC.
By: /s/ XXXXXXX X. XXXX
--------------------------------
Name: XXXXXXX X. XXXX
Title: VICE PRESIDENT, TREASURER
AND ASSISTANT SECRETARY
THERMADYNE RECEIVABLES, NC.
By: /s/ XXXXXXX X. XXXX
--------------------------------
Name: XXXXXXX X. XXXX
Title: VICE PRESIDENT, TREASURER
AND ASSISTANT SECRETARY
S-1
419
Accepted and agreed as of
the 31st of January, 2000
ABN AMRO INCORPORATED
By: /s/ XXXXXXX VAN BEMMELEN
---------------------------
Name: Xxxxxxx van Bemmelen
Title: Director
S-2
420
SCHEDULE I
to Placement Agreement
LITIGATION AND OTHER PROCEEDINGS
None.
S-3
421
SCHEDULE II
to Placement Agreement
Section 13 of the Placement Agreement shall refer to the following
information in the Offering Memorandum:
The first, fourth, sixth, eighth and ninth paragraphs under the heading
"Plan of Distribution", excluding the last sentence of each of the first and
fourth paragraphs.
S-4
