RECEIVABLES PURCHASE AGREEMENT
THIS RECEIVABLES PURCHASE AGREEMENT (this "Agreement") dated as of February 26,
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2001 is entered into by and between WEC COMPANY, a Delaware corporation
("Seller") and CAPITAL FINANCE LLC, a Delaware limited liability company
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("Capital"). In consideration of the mutual covenants and agreements contained
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herein, Seller and Capital hereby agree as follows:
SECTION 1. DEFINITIONS AND CONSTRUCTION
1.1 Definitions. The following definitions shall apply throughout this
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Agreement:
"Account Debtor" means the person or entity which is obligated on a
Receivable.
"Affiliate" means with respect to any person or entity in question, any
other person or entity owned or controlled by, or which owns or controls or
is under common control or is otherwise affiliated with such person or
entity in question.
"Debenture Indenture" means the Debenture Indenture dated July 28, 1999
among Xxxxx Equipment Company, as issuer, and United States Trust Company
of Texas, N.A., as trustee.
"Disputed Accounts" has the meaning given it in Subsection 8.2.
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"Environmental Laws" means any and all federal, state and local laws,
regulations, rules, orders, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges or
releases of pollutants or industrial, toxic or hazardous substances into
the environment, or otherwise relating to the manufacture, processing,
treatment, transport or handling of pollutants or industrial, toxic or
hazardous substances.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all rules and regulations
promulgated with respect thereto.
"ERISA Plan" means any pension benefit plan subject to Title IV of ERISA
maintained by Seller or any Affiliate thereof with respect to which Seller
or any Affiliate has a fixed or contingent liability.
"Event of Default" has the meaning given it in Section 12.
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"GAAP" means those generally accepted accounting principles and practices
which are recognized as such by the Financial Accounting Standards Board
(or any generally recognized successor), consistently applied throughout
the period involved.
"Indemnified Claims" means any and all claims, demands, actions, causes of
action, judgments, suits, liabilities, obligations, losses, damages and
consequential damages, penalties, fines, costs, fees, expenses and
disbursements (including without limitation, fees and expenses of attorneys
and other professional consultants and experts in connection with any
investigation or defense) of every kind or nature, known or unknown,
existing or hereafter arising, foreseeable or unforeseeable, which may be
imposed upon, threatened or asserted against or incurred or paid by any
Indemnified Person at any time and from time to time, because of or
resulting from, in connection with or in any way relating to or arising out
of the purchase of any Account hereunder or any other transaction, act,
omission, event or circumstance in any way connected with or contemplated
by this Agreement or the other Purchase Documents or any action taken or
omitted by any such Indemnified Person under or in connection with any of
the foregoing (including but not limited to any investigation, litigation,
proceeding, enforcement of Capital's rights or defense of Capital's actions
related to or arising out of this Agreement, the other Purchase Documents,
or the Account Payments or use of the proceeds thereof), whether or not any
Indemnified Person is a party hereto; provided, however, the term
"Indemnified Claims" shall not include losses incurred by Capital from the
financial inability of the Account Debtors to pay Accounts.
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"Indemnified Persons" shall collectively mean Capital and its officers,
directors, shareholders, employees, representatives, agents, Affiliates,
successors and assigns.
"Intecreditor Agreement" means an Intercreditor Agreement, dated as of the
date hereof, between Capital and Fleet Capital Corporation, as Agent for
certain lenders.
"Invoices and Related Data" has the meaning given it in Subsection 8.6.
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"Net Amount" means the gross face amount payable pursuant to the invoice of
a Sold Receivable less all permitted discounts, deductions and allowances.
"Notes Indenture" means the Notes Indenture dated July 28, 1999, among the
Seller, as issuer, Xxxxx Equipment Company, as guarantor, and United States
Trust Company of New York, as trustee.
"Purchase Documents" means this Agreement and the documents, agreements and
instruments required by Capital to be executed and delivered in connection
herewith (including, without limitation, the Put Agreement and the
Intercreditor Agreement).
"Purchase Price" has the meaning given it in Subsection 2.2.
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"Put Agreement" means that certain Receivables Put Agreement dated of even
date herewith between Capital and Madison Dearborn Capital Partners II,
L.P.
"Receivables" means all "accounts", "general intangibles" and "chattel
paper", as defined in the UCC, and all other right of Seller to payment for
goods sold or leased or for services rendered which are not evidenced by a
promissory note, whether now existing or hereafter created or arising.
"Receivables Sale Date" means the effective date of the sale of the Sold
Receivables to Capital hereunder.
"Remittance Addresses" means X.X. Xxx 00000, Xxxxxxx* Xxxxxxxx 00000-0000,
X.X. Xxx 00000, Xx. Xxxx, Xxxxxxxxx 00000-0000, X.X. Xxx 000, Xxxxxxxxx,
Xxxxxxxxx 00000-0000, X.X. Xxx 0000, Xxxxxxxxxx 00, Xxxxxxxxxxxx, Xxxxxxx
00000-0000 and X.X. Xxx 00000, Xxxxxxx, Xxxxxxxx 00000
"Sale Assignment" means the Sale Assignment in the form attached hereto as
Schedule A duly executed by an authorized officer of Seller.
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"Sold Receivables" means the Receivables sold, absolutely assigned and
conveyed by Seller to Capital hereunder which are particularly described on
Exhibit A to the Sale Assignment.
"UCC" means the Uniform Commercial Code as in effect in the State of New
York, as amended from time to time.
1.2 Construction. Terms defined in the UCC which are used and not otherwise
defined herein shall have the meanings given them in the UCC. The terms
defined in this Agreement which refer to a particular agreement, instrument
or document also refer to and include all renewals, extensions and
modifications of such agreement, instrument or document. All addenda,
exhibits and schedules attached to this Agreement are a part hereof for all
purposes. Words in the singular form shall be construed to include the
plural and vice versa, unless the context otherwise requires.
SECTION 2. SALE OF RECEIVABLES
2.1 Sale of Accounts. Seller hereby sells, transfers, absolutely assigns and
otherwise conveys to Capital (as a sale by Seller and a purchase by
Capital, rather than a pledge of collateral), without recourse to Seller,
all right, title, and interest of Seller in and to (a) the Sold
Receivables, (b) all books and records (including electronic media or
software) to the extent relating to the Sold Receivables, (c) all related
rights (but not obligations) of Seller with respect thereto, including all
contract rights, guarantees, letters of credit, liens in favor of Seller,
collateral,
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insurance and other agreements and arrangements of whatever character from
time to time to the extent supporting or securing payment of the Sold
Receivables, (d) all of the Invoices and Related Data (as defined in
Subsection 5.5) with respect to the Sold Receivables, (e) all right, title
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and interest of Seller in any related goods, including Seller's rights and
remedies of an unpaid seller or lessor under Article 2, Part 7 of the UCC
(including, without limitation, recission, replevin, reclamation,
repossession and stoppage in transit) relating to the Sold Receivables, and
all returned, reclaimed or repossessed goods relating to the Sold
Receivables, and (f) all cash and non-cash proceeds of the foregoing. The
Sold Receivables are sold to Capital without recourse to Seller; provided,
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however, nothing contained herein shall be construed to relieve Seller from
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liability herein from any breach by Seller of any representation, warranty
or agreement contained herein. The foregoing sale, transfer, assignment and
conveyance does not constitute and is not intended to result in an
assumption by Capital of any obligation of Seller or any other person in
connection with the Sold Receivables, or related rights under any agreement
or instrument relating thereto. Seller agrees to promptly execute and
deliver such bills of sale, assignments, letters of credit, notices of
assignment, financing statements (including continuation statements) under
the UCC and other documents, and make such entries and markings in its
books and records, and to take all such other actions (including the
negotiation, assignment or transfer of negotiable documents, letters of
credit or other instruments) as Capital may request to further evidence or
protect the sale and assignments of the Sold Receivables and related rights
to Capital hereunder, as well as Capital's interest in any returned goods.
2.2 Purchase Price. Capital shall pay $10,000,000 (the "Purchase Price") to
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Seller in consideration for purchasing the Sold Receivables, such amount
being payable by Capital to Seller on the Receivables Sale Date.
SECTION 3. CONDITIONS PRECEDENT
3.1 Conditions Precedent. Capital's obligation hereunder to purchase the Sold
Receivables or pay the Purchase Price for the purchase of the Sold
Receivables under the terms and conditions of this Agreement shall be
subject to the conditions precedent that as of the date of any such
purchase or payment and after giving effect thereto: (i) Capital has
received this Agreement, the Put Agreement and all other Purchase Documents
which have all been appropriately executed by Seller and all other proper
parties (including, without limitation, the Sale Assignment); (ii) all
representations and warranties made in this Agreement and the other
Purchase Documents are true on and as of the date of such purchase; (iii)
no Event of Default, or an event with which the passage of time or the
giving of notice, or both, shall become an Event of Default, has occurred
hereunder or under any of the other Purchase Documents; (iv) there has been
no material adverse change in Seller's financial condition or its business
since the date of the most recent financial statements of Seller supplied
to Capital; (v) Capital shall have received a legal opinion from Xxxx Xxxxx
Xxxx & XxXxxx LLP, as legal counsel for Seller, and from Xxxxxxxx & Xxxxx,
as legal counsel for Madison Dearborn Capital Partners II, L.P.,
satisfactory to Capital which covers such matters incident to the
transactions contemplated by this Agreement, the other Purchase Documents
and the Put Agreement as Capital may require; (vi) Capital shall have
entered into the Intercreditor Agreement with Fleet Capital Corporation, as
Agent for certain lenders; and (vii) Capital shall have received all fees
and expenses owing hereunder.
SECTION 4. EXPENSES AND TAXES
4.1 Attorneys' Fees. Seller agrees to pay or reimburse Capital upon demand for
all reasonable attorneys' fees, court costs and other actual, direct and
reasonable expenses incurred by Capital (whether or not litigation is
commenced or judgment issued, and if litigation is commenced whether at
trial or any appellate level) in preparation, negotiation, and enforcement
of this Agreement and protecting or enforcing its ownership interest in the
Sold Receivables.
4.2 Expenses. Capital shall be entitled to reimbursement upon demand for all
reasonable out of pocket expenses (including, without limitation, all due
diligence expenses) incurred by Capital in the course of performing its
functions with respect to this Agreement.
4.3 Taxes. All taxes and governmental charges of any kind imposed with respect
to the sale of goods or rendering of services relating to the Sold
Receivables shall remain for the account of, and be paid by, Seller.
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Capital as of the date hereof as follows:
5.1 Existence. Seller is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation and is
qualified and authorized to do business and is in good standing in all
states in which such qualification and good standing are necessary. Seller
has all requisite power and authority to execute this Agreement and the
other Purchase Documents to which Seller is a party.
5.2 No Violation. The execution, delivery and performance by Seller of this
Agreement and the other Purchase Documents to which Seller is a party do
not and will not constitute a violation of any applicable law or of
Seller's articles or certificate of incorporation or bylaws or any material
breach of any other document, agreement or instrument to which Seller is a
party or by which Seller is bound.
5.3 Binding Obligations. The execution, delivery and performance of the
Agreement and the other Purchase Documents to which Seller is a party have
been duly authorized by all necessary corporate action by Seller and
constitute legal, valid and binding obligations of Seller enforceable
against Seller in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency or similar laws of general application
relating to the enforcement of creditors' rights and except to the extent
specific remedies may generally be limited by equitable principles.
5.4 Chief Executive Office. The address set forth below Seller's signature
hereon is Seller's chief executive office and principal place of business
and all other business locations of Seller are identified on Schedule 5.4
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attached hereto.
5.5 [Intentionally Omitted].
5.6 True and Correct Information. All information provided by Seller to
Capital during its evaluation of the transactions anticipated by and in
connection with this Agreement, including applications, reports, financial
statements, and the statements made therein were true and correct at the
time made and remain true and correct at the time that this Agreement is
executed.
5.7 Taxes. Seller has filed all federal, state and local tax reports and
returns required by any law or regulation to be filed by it and has either
duly paid all taxes, duties and charges indicated due on the basis of such
returns and reports, or made adequate provision for the payment thereof,
and the assessment of any material amount of additional taxes in excess of
those paid and reported is not reasonably expected. There is no tax lien
notice against Seller presently on file, judgment entered against Seller or
levy on or attachment of its property outstanding or reasonably
anticipated.
5.8 Full Disclosure. There is no fact which Seller has not disclosed to
Capital in writing which could materially adversely affect the Sold
Receivables, or which is necessary to be disclosed in order to keep any of
the representations and warranties contained herein or in any other
Purchase Document from being misleading.
5.9 ERISA Compliance. Seller is not currently contributing, and has never been
required to contribute, to any ERISA Plan.
5.10 Compliance with Laws. Seller is conducting its business in material
compliance with all applicable laws, including but not limited to
applicable Environmental Laws and the Fair Labor Standards Act and has and
is in compliance with all licenses and permits required under any such
laws, except to the extent that noncompliance would not reasonably be
expected to have a material adverse effect on Seller or Seller's business.
Seller does not have any known material contingent liability under any
Environmental Law, except for such contingent liabilities which if realized
would not, individually or in the aggregate, be reasonably expected to have
a material adverse effect on Seller or Seller's business. Seller will
continue to comply in all material respects with all Environmental Laws now
or hereafter applicable to Seller and shall obtain, at or prior to the time
required by applicable Environmental Laws, all environmental, health and
safety permits, licenses and other authorizations necessary for its
operations, in each case to the extent that failure to do the same would
not reasonably be
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expected to have a material adverse effect on Seller or Seller's business.
Seller will promptly furnish to Capital all written notices of violation,
complaints, penalty assessments, suits or other proceedings received by
Seller with respect to any alleged violation of or non-compliance with any
Environmental Laws.
5.11 Legal and Assumed Names. The legal name of Seller is as set forth at the
beginning of the Agreement and Seller has not changed its name in the last
five (5) years, and during such period the Seller did not use any
tradenames or assumed names except as set forth on Schedule 5.11 attached
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hereto.
5.12 Solvent. As of the date hereof, and after giving effect to this Agreement
and the completion of all other transactions contemplated by Seller at the
time of the execution of this Agreement, Seller will (i) be solvent, (the
fair saleable value of Seller's assets exceeding Seller's liabilities, both
fixed and contingent), (ii) be able to pay all of Seller's debts as they
mature, and (iii) have sufficient capital to carry on Seller's businesses.
5.13 Ordinary Course. The sale of the Sold Receivables by Seller to Capital
under this Agreement is being made in the ordinary course of Seller's
business.
SECTION 6. REPRESENTATIONS AND WARRANTIES WITH RESPECT
TO THE SOLD RECEIVABLES
Seller hereby represents and warrants to Capital, as of the date hereof, with
respect to each Sold Receivable as follows:
6.1 Owner. Seller is the sole owner of such Sold Receivable, and upon the
purchase by Capital of such Sold Receivable, Capital will own such Sold
Receivable free and clear of any liens, claims, equities and encumbrances
whatsoever and the consideration received by Seller from Capital for such
Sold Receivable is fair and adequate.
6.2 Authority to Sell. Seller is the sole obligee under such Sold Receivable
and has full power and is duly authorized to sell, assign and transfer such
Sold Receivable to Capital hereunder.
6.3 Full Payment Expected. Seller has no knowledge of any fact which would
lead it to expect that such Sold Receivable will not be paid in the full
stated amount when due.
6.4 Bona Fide Receivable. Such Sold Receivable is valid and enforceable and
arises out of a bona fide sale or lease of conforming goods or the bona
fide rendition of services by Seller, and all underlying goods have been
delivered to the subject Account Debtor, or all underlying services have
been rendered by Seller, in complete fulfillment of all of the terms and
conditions of a fully executed, delivered and unexplored contract or
purchase order with the subject Account Debtor, and such Account Debtor has
accepted the goods or services to which the Sold Receivable relates. Such
Sold Receivable constitutes the legal, valid and binding payment obligation
of the subject Account Debtor, enforceable in accordance with its terms
(except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally).
6.5 Payable in U.S. Dollars. Such Sold Receivable is denominated and payable
only in United States dollars.
6.6 Sold Receivable is Not Past Due. Such Sold Receivable is current and not
past due, has not been paid by or on behalf of the subject Account Debtor
in whole or in part, and, is not subject to any dispute, rescission,
setoff, recoupment, defense or claim by the subject Account Debtor, whether
relating to price, quality, quantity, workmanship, delay in delivery,
setoff, counterclaim or otherwise, and, the subject Account Debtor has not
claimed any defense of any kind or character (other than bankruptcy or
insolvency arising after the date of such sale of such Sold Receivable to
Capital hereunder) against payment of such Sold Receivable.
6.7 U.S. Account Debtor. As of the date of purchase by Capital of such Sold
Receivable, the Account Debtor with respect to such Sold Receivable is
located (within the meaning of Section 9-103 of the UCC) and has its
principal executive offices within the United States.
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6.8 Remittance Addresses. The invoice related to such Sold Receivable sets
forth as its sole address for payment one of the Remittance Addresses.
6.9 Net Amount. The aggregate Net Amount of all Sold Receivables is equal to
$11,750,010.63.
SECTION 7. [INTENTIONALLY OMITTED]
SECTION 8. COVENANTS
So long as this Agreement shall be in effect, Seller agrees and covenants that,
unless Capital shall otherwise consent in writing:
8.1. Notice of False Representation. Seller agrees to notify Capital
immediately of any breach by Seller of any representation, warranty or
covenant contained herein or in the event any representation or warranty
made herein becomes false at any time.
8.2 Notice of Disputed Account. Seller agrees to notify Capital immediately of
the assertion by any Account Debtor of any dispute or other claim
(including any defense or offset asserted by any Account Debtor) with
respect to any Sold Receivable, or with respect to any related goods or
services ("Disputed Accounts").
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8.3 Right of Inspection. Seller agrees to permit Capital to visit its
properties and installations and to examine, audit and make and take away
copies or reproductions of Seller's books and records that are reasonably
related to the Sold Receivables, at all reasonable times at Seller's
expense; provided, however, all such expenses shall be actual, direct and
reasonable.
8.4 Taxes. Seller will pay and discharge when due all assessments, taxes,
governmental charges and levies, of every kind and nature, imposed upon
Seller or its properties, income or profits, prior to the date penalties
would attach, and all lawful claims that, if unpaid, might become a lien or
charge upon any of Seller's property, income or profits: provided, however,
Seller will not be required to pay and discharge any such assessment, tax,
charge, levy or claim so long as (i) same shall be contested in good faith
by appropriate judicial, administrative or other legal proceedings timely
instituted, and (ii) Seller shall have established adequate reserves with
respect to such contested assessment, tax, charge, levy or claim in
accordance with GAAP.
8.5 Proper Reporting. Seller agrees to properly reflect the effect of this
Agreement (including the sale of the Sold Receivables to Capital), in all
financial reports and disclosures, written or otherwise, provided to
Seller's creditors and other interested parties. Seller specifically
agrees that all Sold Receivables will be excluded from Seller's reported
accounts receivable balances.
8.6 Delivery of Invoices and Related Data. Seller shall deliver to Capital on
demand the following (collectively, the "Invoices and Related Data"): (a)
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true and correct copies of all invoices evidencing each Sold Receivable;
(b) the original purchase order relating to each Sold Receivable; (c) the
original warehouse receipts, bills of lading, shipping documents and all
other documents (as defined in the UCC) and evidence of delivery of all
goods or completion of all services relating to each Sold Receivable; and
(d) subject to the terms of the Intercreditor Agreement, the original
security agreements evidencing or granting any liens securing payment of
each Sold Receivable. Seller has delivered to Capital Sources a current
listing of all Sold Receivables, together with the names, addresses,
contact persons and telephone numbers of each Account Debtor. While Seller
has possession of the Invoices and Related Data, Seller will hold such
items in trust for Capital as owner thereof.
SECTION 9. RIGHTS OF CAPITAL
9.1 Notification of Account Debtors. Subject to the terms of the Intercreditor
Agreement, Capital shall have the right at any time, either before or after
the occurrence of an Event of Default and without notice to Seller, to
notify any or all Account Debtors of the sale of the Sold Receivables to
Capital and to direct such Account Debtors to make payment of all amounts
due or to become due to Seller in respect of Sold Receivables directly
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to Capital, to enforce collection of any Sold Receivables and to adjust,
settle or compromise the amount or payment thereof.
9.2 Collections. All payments and collections of Sold Receivables received by
Capital or Seller shall belong to Capital as owner of the Sold Receivables.
9.3 Right to Collect. Subject to the terms of the Intercreditor Agreement,
Seller authorizes Capital to collect, xxx for and give releases for and in
the name of Seller or Capital in Capital's sole discretion, all amounts due
on Sold Receivables. Seller specifically authorizes Capital to endorse, in
the name of Seller, all checks, drafts, trade acceptances or other forms of
payment tendered by Account Debtors in payment of Sold Receivables and made
payable to Seller. Capital shall have no liability to Seller for any
mistake in the application of any payment received with respect to any Sold
Receivables, IT BEING THE SPECIFIC INTENT OF THE PARTIES HERETO THAT
CAPITAL SHALL HAVE NO LIABILITY HEREUNDER FOR ITS OWN NEGLIGENCE, except
for its own gross negligence and willful misconduct. Seller hereby waives
notice of nonpayment of any Sold Receivables as well as any and all other
notices with respect the Sold Receivables, demands or presentations for
payment and agrees that Capital may extend, renew or modify from time to
time the payment of, or vary, reduce the amount payable under or compromise
any of the terms of, any Sold Receivables, in each case without notice to
or the consent of Seller. Subject to the terms of the Intercreditor
Agreement, Seller further authorizes Capital (or its designee) after an
occurrence of an Event of Default to open and remove the contents of any
post office box of Seller or Capital (or its designee) which Capital
believes contains mail relating to Sold Receivables, and in connection
therewith or otherwise, to receive, open and dispose of mail addressed to
Seller which Capital believes may relate to Sold Receivables, and in order
to further assure receipt by Capital (or its designee) of mail relating to
such Sold Receivables, to notify other parties including customers and
postal authorities to change the address for delivery of such mail
addressed to Seller to such address as Capital may designate. Capital
agrees to use reasonable measures to preserve the contents of any such mail
which does not relate to the Sold Receivables and to deliver same to Seller
(or, at the election of Capital, to notify Seller of the address where
Seller may take possession of such contents; provided, if Seller does not
take possession of such contents within 30 days after notice from Capital
to take possession thereof, Capital may dispose of such contents without
any liability to Seller).
9.4 UCC Filings. Seller hereby authorizes Capital to file, with or without the
signature of Seller, one or more financing or continuation statements, and
amendments thereto, relating to the Sold Receivables. Seller further
agrees that a carbon, photographic or other reproduction of this Agreement
or any financing statement describing the Sold Receivables is sufficient as
a financing statement and may be filed in any jurisdiction Capital may deem
appropriate.
9.5 Right to Perform. If Seller fails to perform any agreement or obligation
provided herein or in any of the other Purchase Documents, Capital may
itself perform, or cause performance of, such agreement or obligation, and
the actual and reasonable expenses of Capital incurred in connection
therewith shall be a part of the Obligations and payable by Seller on
demand.
SECTION 10. SERVICING
10.1 Appointment of Servicing Agent. Capital hereby appoints Seller as
servicing agent for Capital for the purpose of expediting the collection
of Sold Receivables. Seller, as servicing agent, agrees to maintain an
active, on-going and regular dialogue with each Account Debtor of the Sold
Receivables. Seller further agrees, as servicing agent, to utilize all
powers, influences and rights and to take every action within its control
in accordance with its customary practices and applicable law to expedite
the collection of the Sold Receivables and direct such payments exclusively
to the Remittance Address.
10.2 Protection of Capital's Rights. Seller, as servicer, shall take no action
which, nor omit to take any action the omission of which, would
substantially impair the rights of Capital in any Sold Receivables.
Seller, as servicer, agrees to defend at its expense Capital's ownership of
the Sold Receivables.
10.3 Proceeds or Returned Goods Received by Seller. Subject to the terms of the
Intercreditor Agreement, all amounts and proceeds (including instruments
and writings) received by Seller at any time in respect of any Sold
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Receivables shall be received in trust for the benefit of Capital
hereunder, shall be segregated from other funds of Seller and shall be
promptly paid over to Capital in the same form as so received (with any
necessary endorsement). If any goods relating to Sold Receivables shall be
returned to or repossessed by Seller, Seller shall give prompt notice
thereof to Capital and shall hold such goods in trust for Capital, separate
and apart from Seller's own property, and such goods shall be owned solely
by Capital and be subject to Capital's direction and control. Seller shall
properly store and protect such goods and agrees to cooperate fully with
Capital in any subsequent disposition thereof for the benefit of Capital.
The provisions of this Subsection shall survive the termination of this
Agreement.
10.4 Additional Documentation. Seller will furnish to Capital, upon request,
any and all papers, documents and records in its possession or control
related to the Sold Receivables, or related to Seller's business
relationship with the respective Account Debtors of the Sold Receivables,
and agrees to cooperate fully with Capital in all matters related to
collection of the Sold Receivables.
10.5 Termination. Capital reserves the right to terminate Seller as its
servicing agent at any time with or without cause and without notice to
Seller.
SECTION 11. TERMINATION
11.1 Termination. This Agreement shall terminate when all obligations and
liabilities owing by Seller to Capital hereunder have been indefeasibly
paid to Capital or otherwise satisfied and Seller has satisfied its
servicing obligations hereunder.
SECTION 12. EVENTS OF DEFAULT
12.1 Events of Default. An event of default ("Event of Default") shall be
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deemed to have occurred hereunder upon the occurrence of one or more of the
following:
(a) Seller shall fail to pay as and when due any obligations or
liabilities owed to Capital hereunder.
(b) Seller shall breach any covenant or agreement made herein, in any of
the other Purchase Documents or in any other agreement now or
hereafter entered into between Seller and Capital.
(c) Any warranty or representation made herein or in any of the other
Purchase Documents shall be false or misleading in any material
respect when made.
(d) The occurrence of any event which permits the acceleration of the
maturity of any indebtedness owing by Seller to Fleet Capital
Corporation.
(e) Either (i) the commencement by Seller of any bankruptcy, insolvency,
arrangement, reorganization, receivership or similar proceedings under
any federal or state law; or (ii) the commencement against the Seller
of any bankruptcy, insolvency, arrangement, reorganization,
receivership or similar proceedings under any federal or state law by
creditors of the Seller, provided that such event shall not be deemed
an Event of Default if such proceedings is controverted within ten
(10) days and dismissed and vacated within thirty (30) days of
commencement, except in the event that any of the actions sought in
any such proceeding shall occur or the Seller shall take action to
authorize or effect any of the actions in any such proceeding.
(f) Seller shall become insolvent, make a transfer in fraud of creditors
or make an assignment for the benefit of creditors.
(g) Upon the occurrence of any event of default under the Notes Indenture
or Debenture Indenture.
Subject to the terms of the Intercreditor Agreement, Capital may exercise
all rights and remedies available to Capital, at law or in equity, after
the occurrence of an Event of Default.
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SECTION 13. MISCELLANEOUS
13.1 Cumulative Rights. All rights, remedies and powers granted to Capital in
this Agreement, or in any other instrument or agreement given by Seller to
Capital or otherwise available to Capital in equity or at law, are
cumulative and may be exercised singularly or concurrently with such other
rights of Capital. These rights may be exercised from time to time as to
all or any part of the Sold Receivables as Capital in its discretion may
determine. Capital shall not be deemed to have waived any of its rights
and remedies unless the waiver is in writing and signed by Capital. A
waiver by Capital of a right or remedy under this Agreement on one occasion
is not a waiver of the right or remedy on any subsequent occasion.
13.2 Notices. Any notice or communication with respect to this Agreement shall
be in writing sent by (i) personal delivery, (ii) United States mail,
postage prepaid, registered or certified mail, or (iii) facsimile (with
receipt thereof confirmed by telecopier), addressed to each party thereto
at its address set forth below their signature hereon or to such other
address or to the attention of such other person as hereafter shall be
designated in writing by the applicable party sent in accordance herewith.
Any such notice or communication shall be deemed to have been given either
at the time of personal delivery or three (3) days after it is deposited in
the United States mail, with proper postage prepaid, or in the case of
facsimile, upon receipt.
13.3 Severability. Each and every provision, condition, covenant and
representation contained in this Agreement is, and shall be construed, to
be a separate and independent covenant and agreement. If any term or
provision of this Agreement shall to any extent be invalid or
unenforceable, the remainder of the Agreement shall not be affected
thereby.
13.4 Indemnity. Seller hereby indemnifies and agrees to hold the Indemnified
Persons harmless against any breach by Seller of any representation,
warranty, covenant or agreement of Seller contained in this Agreement, and
against any claims or damages arising out of the manufacture, sale,
possession or use of, or otherwise relating to, goods, or the performance
of services, associated with or relating to the Sold Receivables or related
rights purchased (or with respect to which a security interest is granted)
hereunder. Seller also hereby indemnifies and agrees to hold harmless and
defend all Indemnified Persons from and against any and all Indemnified
Claims. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH
INDEMNIFIED CLAIMS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN
PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED, IN
WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY INDEMNIFIED
PERSON, but shall exclude any of the foregoing resulting from such
Indemnified Person's gross negligence or willful misconduct. If Seller or
any third party ever alleges any gross negligence or willful misconduct by
any Indemnified Person, the indemnification provided for in this Section
shall nonetheless be paid upon demand, subject to later adjustment or
reimbursement, until such time as a court of competent jurisdiction enters
a final judgment as to the extent and affect of the alleged gross
negligence or willful misconduct. Upon notification and demand, Seller
agrees to provide defense of any Indemnified Claim and to pay all costs and
expenses of counsel selected by any Indemnified Person in respect thereof.
Any Indemnified Person against whom any Indemnified Claim may be asserted
reserves the right to settle or compromise any such Indemnified Claim as
such Indemnified Person may determine in its sole discretion, and the
obligations of such Indemnified Person, if any, pursuant to any such
settlement or compromise shall be deemed included within the Indemnified
Claims. Except as specifically provided in this section, Seller waives all
notices from any Indemnified Person. The provisions of this Section shall
survive the termination of this Agreement.
13.5 Benefits; Assignment. All grants, covenants and agreements contained in
this Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns; provided, however, that Seller
may not delegate or assign any of its duties or obligations under this
Agreement without the prior written consent of Capital and any assignment
without such consent shall be void. CAPITAL RESERVES THE RIGHT TO ASSIGN
ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT IN WHOLE OR IN PART TO ANY
PERSON OR ENTITY. To the extent Capital assigns its rights and obligations
hereunder to a third party, Capital shall thereafter be released from such
assigned obligations to Seller and such assignment shall effect a novation
between Seller and such third party.
13.6 Captions. The captions in this Agreement are for convenience only and
shall not define or limit the provisions
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hereof.
13.7 Governing Law; Venue; Submission to Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF,
EXCEPT TO THE EXTENT PERFECTION AND THE EFFECT OF PERFECTION OR NON-
PERFECTION OF THE SECURITY INTEREST GRANTED HEREUNDER, IN RESPECT OF ANY
PARTICULAR ASSETS, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN
THE STATE OF NEW YORK. THIS AGREEMENT IS PERFORMABLE BY THE PARTIES IN THE
STATE OF NEW YORK. THE PARTIES HERETO EACH AGREE THAT THE STATE OF NEW
YORK SHALL BE THE EXCLUSIVE VENUE FOR LITIGATION OF ANY DISPUTE OR CLAIM
ARISING UNDER OR RELATING TO THIS AGREEMENT, AND THAT THE STATE OF NEW
YORK IS A CONVENIENT FORUM IN WHICH TO DECIDE ANY SUCH DISPUTE OR CLAIM.
THE PARTIES HERETO EACH CONSENT TO THE PERSONAL JURISDICTION OF THE STATE
AND FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK FOR THE LITIGATION
OF ANY SUCH DISPUTE OR CLAIM. SELLER IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
13.8 WAIVER OF JURY TRIAL. THE PARTIES HERETO EACH HEREBY IRREVOCABLY WAIVES,
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY AT ANY TIME
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY OR ASSOCIATED HEREWITH.
13.9 Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the subject matter of this Agreement and
supersedes all prior written agreements and understandings, if any,
relating to the subject matter hereof (except documents, agreements and
instruments delivered or to be delivered in accordance with the express
terms hereof).
13.10 Amendments. No modification or amendment of or supplement to this
Agreement shall be valid or effective unless the same is in writing and
signed by the party against whom it is sought to be enforced.
13.11 Effectiveness of Agreement; Counterparts. This Agreement shall become
effective only upon acceptance by Capital as evidenced by Capital's
signature hereon. This Agreement may be separately executed in any number
of counterparts, each of which shall be an original, but all of which,
taken together, shall be deemed to constitute one and the same instrument.
Delivery of an executed counterpart of this Agreement by telecopy shall be
equally as effective as delivery of a manually executed counterpart of
this Agreement. Any party delivering an executed counterpart of this
Agreement by telecopy also shall deliver a manually executed counterpart
of this Agreement but the failure to deliver a manually executed
counterpart shall not affect the validity, enforceability, and binding
effect of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date
first written above.
WEC COMPANY
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxx, Chairman
Facsimile: (000) 000-0000
CAPITAL FINANCE LLC
By:_____________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Address: 0000 Xxxxxxxxxxx Xxx., X.X
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
SCHEDULE 5.11
TRADE NAMES
Xxxxx Equipment Company
Du-Xx
Xxxxxx
Xxxxxxx
Xxxx
BMP
Xxxx-Xxx
CF
Central Fabricators
Tru-Part
TISCO
Alitec
SCHEDULE A
[FORM OF SALE ASSIGNMENT]
THIS SALE ASSIGNMENT is dated as of February _____, 2001, between WEC
COMPANY (the "Seller") and CAPITAL FINANCE LLC ("Capital").
------ -------
1. We refer to the Receivables Purchase Agreement, dated as of February
____, 2001, by and between the Seller and Capital (the "Purchase Agreement").
------------------
All provisions of the Purchase Agreement are incorporated herein by reference.
All capitalized terms shall have the meanings set forth in the Purchase
Agreement.
2. The Seller does hereby sell, transfer, assign, set over and convey to
Capital all right, title and interest of the Seller in and to all Receivables
described in Exhibit A attached hereto (collectively, the "Sold Receivables").
----------------
3. Seller does hereby reaffirm the representations and warranties
referred to in Section 6 of the Purchase Agreement with respect to each Sold
Receivable with full force and effect as if fully set forth herein.
IN WITNESS WHEREOF, the parties have caused this Sale Assignment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
WEC COMPANY
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
CAPITAL FINANCE LLC
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
EXHIBIT A
to
SALE ASSIGNMENT
[SEE ATTACHED]
SCHEDULE 5.4
OTHER BUSINESS LOCATIONS
--------------------------------------------------------------------------------
2606 Illinois Route 2 South 0000 X. Xxxxxxxx
Xxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------
000 Xxxxxxxxxx Xxxxxx 00000 Xxxxxxxx Xxxxx
Xx. Xxxx, XX 00000 Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
0000 Xxx Xxxx Xxxxx 00 Xxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
0000 Xxxxx Xxxx Xxxx 000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
000 Xxxxxxx Xxxxx, Xxxxx 000 000 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
0000 Xxxxxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
8565 23/rd/ Avenue 000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
8571 23/rd/ Avenue 000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
00000 Xxxxxxx Xxxx. 0000 00xx Xx. X.X.
XxXxxxxx, XX 00000 Xxxxx, XX 00000
--------------------------------------------------------------------------------
0000 Xxxxx Xxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
