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EXHIBIT 10 (xi)
FIRST AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT (this
"Amendment") is made as of the 20th day of December, 1995, among THE XXXXXXX
WORKS, STANLEY MECHANICS TOOLS, INC. (formerly known as Mac Tools, Inc.) and
XXXXXXX- BOSTITCH, INC. (collectively, the "Sellers"); WACHOVIA BANK OF GEORGIA,
N.A. as Agent and as an Existing Purchaser; BANQUE NATIONALE DE PARIS, NEW YORK
BRANCH, and ROYAL BANK OF CANADA (the other "Existing Purchasers") and FLEET
BANK OF MASSACHUSETTS, N.A. (the "Additional Purchaser", the Existing Purchasers
and the Additional Purchaser being hereinafter collectively referred to as the
"Purchasers").
Background:
The Sellers, the Existing Purchasers and the Agent have
entered into a certain Receivables Purchase Agreement dated as of December 1,
1993 (the "Receivables Purchase Agreement").
The Sellers, the Existing Purchasers and the Agent wish to
amend the Receivables Purchase Agreement in certain respects, as hereinafter
provided, and wish to add the Additional Purchaser as a Purchaser (as defined in
the Receivables Purchase Agreement) party to the Receivables Purchase Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used herein which
are not otherwise defined herein shall have the respective meanings assigned to
them in the Receivables Purchase Agreement.
SECTION 2. Amendments. The Receivables Purchase Agreement is
hereby amended as set forth in this Section 2.
2.1 Amendments to Section 1.01. (a) The following definitions
are hereby added to Section 1.01 of the Receivables Purchase Agreement, to be
inserted in proper alphabetical order:
"Adjusted Interbank Offered Rate" applicable to any
Settlement Period means a rate per annum equal to the quotient
obtained (rounded upwards, if necessary, to the next higher
1/100 of 1%) by dividing (a) the applicable IBOR for such
Settlement Period by (b) 1.00 minus the applicable IBOR
Reserve Percentage.
"Dollar Denominated Receivables" means Receivables
payable in Dollars.
"Dollar Equivalent" means the Dollar equivalent of
amounts that may be calculated with respect to Foreign
Currency Denominated Receivables including, without
limitation, the Unpaid Balance and Unearned Charges,
determined by the Agent on the basis of its spot rate for the
purchase, with Dollars, of the foreign currency in which such
Foreign Currency Denominated Receivables are payable.
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"Effective Date" means December 20, 1995.
"Foreign Currency Business Day" shall mean any
Domestic Business Day, but excluding one on which trading is
not carried on by and between banks in deposits of the foreign
currency or currencies in which any applicable Foreign
Currency Denominated Receivable is payable, in the applicable
interbank market for such foreign currency or currencies.
"Foreign Currency Denominated Receivables" means
Receivables payable in the official currency of a country,
other than the United States, that is a member of the
Organization for Economic Cooperation and Development.
"IBOR" means, with respect to all Foreign Currency
Denominated Receivables payable in the same currency, the
offered rate for deposits in the foreign currency in which
such Foreign Currency Denominated Receivables are payable, for
amounts equal or comparable to the principal amount of the
aggregate Net Balances of such Foreign Currency Denominated
Receivables as of the first day of the Settlement Period
during which such rate is being determined, and offered for a
term of three months, which rate appears on Telerate Page 3750
or the appropriate Telerate page for such currency or if the
rate for such currency is not available on Telerate the
Reuters page for such currency as of 11:00 A.M. (London,
England time) on the day that is two Foreign Currency Business
Days prior to the first day of such Settlement Period. If the
foregoing rate is unavailable for any reason, then such rate
shall be determined by the Agent from any other interest rate
reporting service of recognized standing designated in writing
by the Agent to the Sellers and the Purchasers.
"IBOR Rate" means, with respect to all Foreign
Currency Denominated Receivables payable in the same currency,
for any day during any Settlement Period, a rate per annum
equal to the sum of the Adjusted Interbank Offered Rate for
such currency for such Settlement Period, plus the Applicable
IBOR Margin for such day, provided that, upon the occurrence
and during the continuance of a Repurchase Event, the IBOR
Rate for any day during any Settlement Period means a rate per
annum equal to the sum of (x) the Adjusted Interbank Offered
Rate for such currency for such Settlement Period, plus (y)
the Applicable IBOR Margin for such day, plus (z) 2.00% per
annum. The "IBOR Rate" with respect to a particular currency
for any Settlement Period means a rate per annum equal to the
weighted average of the IBOR Rate in effect for each day with
respect to such currency during such Settlement Period.
"IBOR Reserve Percentage" means with respect to a
particular currency, for any day that percentage (expressed as
a decimal) that is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirements
for a member bank of the Federal Reserve System in respect of
"Eurocurrency Liabilities" for such currency (or in respect of
any other category of liabilities that includes deposits by
reference to which the Purchasers' Yield (when calculated by
reference to the IBOR Rate) is determined or any category of
extensions of credit or other assets that includes loans by a
non-United States
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office of any Purchaser to United States
residents). The Adjusted Interbank Offered Rate shall be
adjusted automatically on and as of the effective date of any
change in the IBOR Reserve Percentage.
(b) The definition of "Applicable Base Rate Margin" and
"Applicable Euro-Dollar Margin" contained in Section 1.01 of the Receivables
Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
"Applicable Base Rate Margin", "Applicable
Euro-Dollar Margin" and "Applicable IBOR Margin" (collectively
referred to herein as the "Applicable Margins") mean, for any
day during any period set forth in the following table, those
percentages per annum set forth opposite such period in such
table, which percentages shall vary from time to time as set
forth below depending on whether the Debt Rating of the
Unsupported Stanley Debt is High, Medium or Low (the
Applicable Margins to change from time to time on any day on
which there occurs a change in the Debt Rating of the
Unsupported Stanley Debt):
PERIOD DEBT APPLICABLE APPLICABLE APPLICABLE
RATING EURO-DOLLAR IBOR BASE RATE
MARGIN MARGIN MARGIN
--------------------------------------------------------------------------------------------------------------
Prior to the Commitment High + 0.2500% +0.2500% + 0.0000%
Expiration Date --------------- ------------------- ------------------- -------------------
Medium + 0.3750% +0.03750% + 0.1250%
--------------- ------------------- ------------------- -------------------
Low + 0.5000% +0.5000% + 0.2500%
--------------- ------------------- ------------------- -------------------
From and after the High + 1.0000% +1.0000% + 0.7500%
Commitment
Expiration Date
--------------- ------------------- ------------------- -------------------
Medium + 1.1250% +1.1250% + 0.8750%
--------------- ------------------- ------------------- -------------------
Low + 1.2500% +1.2500% + 1.0000%
---------------------------------- --------------- ------------------- ------------------- -------------------
(c) The definition of Beneficial Interest Percentage contained
in Section 1.01 of the Receivables Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"Beneficial Interest Percentage" of any Purchaser means, at
any date, a percentage obtained by dividing (a)(i) the aggregate amount
funded by such Purchaser hereunder, on or prior to such date, in
respect of the Purchase Price for the Initial Offered Receivables and
all Portfolio Increases (calculated by converting any amounts
attributable to Foreign Currency Denominated Receivables into their
Dollar Equivalents as of such date), minus (ii) the aggregate amount
allocated and paid to such Purchaser pursuant to Section 2.09(c), on or
prior to such date, in respect of all Portfolio Decreases (calculated
by converting any amounts attributable to Foreign Currency Denominated
Receivables into their Dollar Equivalents as of such date) by (b) the
Portfolio Balance as of the Cutoff Date or, if later, the Domestic
Business Day next preceding the Reset
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Date for the last Settlement Period that shall have ended on or prior
to such date. In the event of a permitted assignment by a Purchaser of
a portion of its Beneficial Interest, such Purchaser's Beneficial
Interest Percentage shall be allocated proportionately between such
Purchaser and such Purchaser's Assignee.
(d) The definition of Closing Balance contained in Section
1.01 of the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
"Closing Balance" with respect to all Purchased Receivables
payable in the same currency (calculated separately for each currency
in which Purchased Receivables are payable) for any Settlement Period
means the aggregate Net Balances of the Closing Receivables payable in
such currency for such Settlement Period as of the Domestic Business
Day next preceding the Reset Date for such Settlement Period.
(e) The second sentence in the definition of Commitment
contained in Section 1.01 of the Receivables Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
The total of the Commitments initially shall be $80,000,000 and on and
after the Effective Date shall be $110,000,000.
(f) The definition of Commitment Expiration Date contained in
Section 1.01 of the Receivables Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"Commitment Expiration Date" means December 20, 1998 or such later date
as the Sellers and all of the Purchasers may agree in writing.
(g) Clause (c)(i) of the definition of Eligible Receivables
contained in Section 1.01 of the Receivables Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
(i) is payable in Dollars or in the official currency of a country that
is a member of the Organization for Economic Cooperation and
Development (excluding, however, Receivables payable in the official
currencies of Greece, Iceland, Mexico and Turkey),
(h) Clause (c)(v) of the definition of Eligible Receivables
contained in Section 1.01 of the Receivables Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
(v) was created in a country that is a member of the Organization for
Economic Cooperation and Development;
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(i) Clause (e)(iv) of the definition of Eligible Receivables
contained in Section 1.01 of the Receivables Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
(iv) constitutes the only Contract with respect to the goods
sold or leased thereunder and the services, if any, related
thereto (or if more than one Contract exists, all rights under
such Contracts will be assigned to the Purchasers hereunder),
(j) Clause (e)(vi) of the definition of Eligible Receivables
contained in Section 1.01 of the Receivables Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
(vi) has a remaining term of no longer than 60 months from the
date such Receivable is purchased hereunder,
(k) The definition of Facility Fee Rate contained in Section
1.01 of the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
"Facility Fee Rate" means, for any day, a rate per annum equal
to (a) before the Effective Date, (i) 0.1500% per annum at all
times when the Debt Rating of Unsupported Stanley Debt is
High, or (ii) 0.1875% per annum at all other times, and (b) on
and after the Effective Date, (i) 0.1000% per annum at all
times when the Debt Rating of Unsupported Stanley Debt is
High, or (ii) 0.1375% per annum at all other times.
(l) The definition of London Interbank Offered Rate contained
in Section 1.01 of the Receivables Purchase Agreement is hereby amended by
inserting on the third line thereof, immediately after the term "Opening
Balance", and on the last line thereof, immediately after the term "Opening
Balance", the following phrase:
consisting solely of Dollar Denominated Receivables
(m) The definition of MAC contained in Section 1.01 of the
Receivables Purchase Agreement is hereby amended and restated in its entirety to
read as follows:
"Mechanics Tools" means Stanley Mechanics Tools, Inc., an Ohio
corporation (formerly known as Mac Tools, Inc.), and its
permitted successors and assigns.
All references in the Receivables Purchase Agreement to MAC
shall be deemed to refer to Mechanics Tools, and all references to Mac Tools,
Inc. shall be deemed to refer to Stanley Mechanics Tools, Inc.
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(n) The definition of Net Balance contained in Section 1.01 of
the Receivables Purchase Agreement is hereby amended by adding an additional
sentence at the end of such definition, to read as follows:
The Net Balance of each Foreign Currency Denominated
Receivable shall be calculated in the foreign currency in
which such Foreign Currency Denominated Receivable is payable.
(o) The definition of Opening Balance contained in Section
1.01 of the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
"Opening Balance" with respect to Purchased Receivables
payable in the same currency (calculated separately for each
currency in which Purchased Receivables are payable) for any
Settlement Period means the aggregate Net Balances of the
Opening Receivables payable in such currency for such
Settlement Period as of the first day of such Settlement
Period.
(p) The definition of Portfolio Balance contained in Section
1.01 of the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
"Portfolio Balance" means, at any time, the aggregate amount
of the Net Balances of all Purchased Receivables at such time.
For purposes of this definition, the Dollar Equivalent of the
Net Balance of each Foreign Currency Denominated Receivable as
of the date of calculation shall be used.
(q) The definition of Portfolio Decrease contained in Section
1.01 of the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
"Portfolio Decrease" means, with respect to Purchased
Receivables payable in any currency (calculated separately for
each currency in which Purchased Receivables are payable) for
any Settlement Period, the positive sum, if any, of the
Opening Balance with respect to Purchased Receivables payable
in such currency for such Settlement Period minus the Closing
Balance with respect to Purchased Receivables payable in such
currency for such Settlement Period.
(r) The definition of Portfolio Increase in Section 1.01 of
the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
"Portfolio Increase" means, with respect to Purchased
Receivables payable in any currency (calculated separately for
each currency in which Purchased Receivables are payable) for
any Settlement Period, the negative sum, if any, of the
Opening Balance with respect to Purchased Receivables payable
in such currency for such Settlement Period minus the Closing
Balance with respect to
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Purchased Receivables payable in such currency for such
Settlement Period. The Portfolio Increase with respect to
Purchased Receivables payable in a particular currency for any
Settlement Period represents the amount of the aggregate
Purchase Price for all Subsequently Offered Receivables
payable in such currency to be purchased by the Purchasers
hereunder on the Ending Date for such Settlement Period, net
of the amount by which the Opening Balance with respect to
Purchased Receivables payable in such currency for such
Settlement Period exceeds the aggregate Net Balances of the
Opening Receivables with respect to Purchased Receivables
payable in such currency for such Settlement Period as of such
Ending Date.
(s) The definition of Purchasers' Yield contained in Section
1.01 of the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
"Purchasers' Yield" with respect to Purchased Receivables
payable in a particular currency (calculated separately for
each currency in which Purchased Receivables are payable) for
any Settlement Period means an amount equal to the product
obtained by multiplying (a) the Opening Balance with respect
to Purchased Receivables payable in such currency for such
Settlement Period times (b) the Yield Rate applicable to
Purchased Receivables payable in such currency for such
Settlement Period times (c) a fraction, the numerator of which
is the number of days in such Settlement Period, including the
first but excluding the last, and the denominator of which is
360.
(t) The definition of Reset Date contained in Section 1.01 of
the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
"Reset Date" for any Settlement Period means the earlier of
(i) the Second Euro- Dollar Business Day next preceding the
Ending Date for such Settlement Period, or (ii) if a Net
Balance is outstanding with respect to any Foreign Currency
Denominated Receivables, of if any Foreign Currency
Denominated Receivables will be purchased on the Ending Date
for such Settlement Period, the second Foreign Currency
Business Day next preceding the Ending Date for such
Settlement Period.
(u) The definition of Settlement Period contained in Section
1.01 of the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
"Settlement Period" means each period that (i) in the case of
the first Settlement Period, shall commence on Closing Date
and shall end March 20, 1994 or (ii) in the case of each
Settlement Period thereafter, shall commence on the last day
of the immediately preceding Settlement Period and shall end
on the 20th day in the third succeeding calendar month (unless
such day is not a Euro-Dollar Business Day and a Foreign
Currency Business Day, in which event such Settlement
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Period shall end on the next succeeding day which is a
Euro-Dollar Business Day and a Foreign Currency Business Day).
(v) The definition of Standard & Poor's contained in Section
1.01 of the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
"Standard & Poor's" means Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc. and any
successor thereto that is a nationally recognized rating
agency.
(w) The definition of Yield Rate contained in Section 1.01 of
the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
"Yield Rate" for any Settlement Period means (i) with respect
to Dollar Denominated Receivables, the Adjusted Base Rate or
the Euro-Dollar Rate for such Settlement Period, as Stanley
shall select or be deemed to have selected pursuant to Section
2.04; and (ii) with respect to Foreign Currency Denominated
Receivables, the IBOR Rate for such Settlement Period for each
different foreign currency in which such Foreign Currency
Denominated Receivables are payable.
2.2 Amendment to Section 2.01. Section 2.01 of the Receivables
Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
SECTION 2.01. Commitments to Purchase Receivables. Each
Purchaser severally agrees, on the terms and conditions set
forth herein, to purchase Receivables, up to such Purchaser's
Commitment, owned by one or more of the Sellers and offered
for sale pursuant to Section 2.02 on the Closing Date and on
any Ending Date for any Settlement Period ending prior to the
Commitment Expiration Date or the Commitment Termination Date,
as applicable; provided that, (i) immediately after each such
Purchase the Portfolio Balance shall not exceed the total
Commitments; (ii) the aggregate Net Balances, as of the Cutoff
Date, of Receivables so offered for sale on the Closing Date,
shall not be less than $25,000,000; and (iii) immediately
after each such Purchase the Portfolio Balance of Foreign
Currency Denominated Receivables shall not exceed $20,000,000.
Notwithstanding anything in this Agreement to the contrary,
neither the Agent or any Purchaser shall assume or be deemed
or considered to have assumed the duties, liabilities or
obligations of any Seller or any other Person under any
Contract by reason of any Purchase hereunder or otherwise.
2.3 Amendment to Section 2.02(b). Section 2.02(b) of the Receivables
Purchase Agreement is hereby amended by changing each reference therein to
Closing Balance and Net Balance to Closing Balances and Net Balances,
respectively, and by adding, on the seventh line thereof, immediately after the
term "Net Balances", the following parenthetical:
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(using the Dollar Equivalent of the Net Balance of each
Foreign Currency Denominated Receivable)
2.4 Amendment to Section 2.02(c). Section 2.02(c) of the Receivables
Purchase Agreement is hereby amended by deleting the word "and" immediately
prior to clause (vi) thereof and by adding an additional clause (vii) at the end
of the second sentence thereof, to read as follows:
and (vii) the currency in which such Receivables are payable.
2.5 Amendment to Section 2.04(b). Section 2.04(b) of the Receivables
Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
(b) Stanley may select, on behalf of the Sellers, for each
Settlement Period whether the Yield Rate for such Settlement
Period with respect to Dollar Denominated Receivables shall be
the Adjusted Base Rate or the Euro-Dollar Rate for such
Settlement Period. Such selection shall be made by written
notice from Stanley to the Agent to be received not later than
10:00 a.m. (Atlanta, Georgia time) on the third Euro-Dollar
Business Day next preceding the first day of such Settlement
Period if Stanley shall elect the Euro-Dollar Rate as the
Yield Rate for such Settlement Period; provided that if the
Agent shall not have received such a notice from Stanley on or
prior to 10:00 a.m. (Atlanta, Georgia time) on the third
Euro-Dollar Business Day next preceding the first day of such
Settlement Period, Stanley shall be deemed to have selected,
on behalf of the Sellers, the Euro-Dollar Rate as the Yield
Rate for such Settlement Period with respect to Dollar
Denominated Receivables; and provided further that, upon the
occurrence and during the continuance of a Repurchase Event,
Stanley may not select the Euro-Dollar Rate as the Yield Rate
for any Settlement Period unless all of the Purchasers shall
consent thereto in writing. The Yield Rate for all Foreign
Currency Denominated Receivables shall be the IBOR Rate with
respect to the respective currencies in which such Foreign
Currency Denominated Receivables are payable.
2.6 Amendment to Section 2.05. Section 2.05 of the Receivables Purchase
Agreement is hereby amended by changing the reference to Closing Balance in the
second line thereof to Closing Balances, and by inserting immediately after the
phrase Closing Balances the following parenthetical:
(calculated using the Dollar Equivalent of the Net Balance of
each Foreign Currency Denominated Receivable)
2.7 Amendment to Section 2.07(a). Section 2.07(a)(iv) of the
Receivables Purchase Agreement is hereby amended by adding immediately before
clause (x) in the fifth line from the bottom thereof the following phrase:
such Contract covers goods with an original value in excess of
$5,000 and
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2.8 Amendment to Section 2.09(b). Section 2.09(b) of the Receivables
Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
(b) Prior to 4:00 p.m. (Atlanta, Georgia time) on the Domestic
Business Day prior to the Reset Date for each Settlement
Period, the Sellers shall submit to the Agent and the
Purchasers a settlement statement, xxxx of sale and
assignment, substantially in the form attached hereto as
Exhibit D-1 (each a "Settlement Statement"), dated the Ending
Date for such Settlement Period and specifying among other
things (i) the Opening Balances and the Closing Balances for
such Settlement Period, (ii) the Portfolio Decreases, if any,
for such Settlement Period, (iii) the Portfolio Increases, if
any, for such Settlement Period, (iv) the amount and
computation of the Purchasers' Yields for such Settlement
Period, (v) the amount and computation of the Facility Fee for
such Settlement Period, and (vi) the amount of all Agent's
Servicing Fees and Agent's Costs and Expenses, if any, that
became due to the Agent on or before, but remain unpaid as of,
such Ending Date. In connection with the Settlement Statement
for each Settlement Period, Stanley shall deliver to the
Agent, for receipt not later than 10:00 a.m. (Atlanta, Georgia
time) on the Ending Date for such Settlement Period, a
Receivables Schedule for such Settlement Period, dated as of
the Domestic Business Day next preceding the Reset Date for
such Settlement Period, conforming to the requirements of
Section 2.02. Notwithstanding the foregoing, in the event the
Agent shall have assumed the Sellers' responsibilities for the
billing and collection of Purchased Receivables, such
Settlement Statements shall be prepared by the Agent (with
copies furnished to the Sellers and the Purchasers) and the
calculations and information therein shall be conclusive,
absent manifest error.
2.9 Amendment to Section 2.09(c).The reference to Portfolio Decrease in
clause (i) and the reference to Purchasers' Yield in clause (ii) of the first
sentence of Section 2.09(c) of the Receivables Purchase Agreement is hereby
changed from the singular to the plural, or to Portfolio Decreases and
Purchasers' Yields, respectively.
2.10 Amendment to Section 2.09(d). Section 2.09(d) of the Receivables
Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
(d) Subject to Section 3.02, on the Ending Date for each
Settlement Period each Purchaser shall make available to the
Agent, in accordance with the provisions of Section 2.10(c),
its ratable share of the Portfolio Increases (in the
appropriate currencies), if any, for such Settlement Period.
Subject to Section 2.10(c), the Agent will make the funds so
received from the Purchasers available to Xxxxxxx, on behalf
of and for the account of the Sellers, at the Agent's
aforesaid address.
2.11 Amendment to Section 2.09(e). All references to Portfolio
Increase, Portfolio Decrease, and Purchasers' Yield contained in Section 2.09(e)
of the Receivables Purchase Agreement are hereby changed from the singular to
the plural, or to Portfolio Increases, Portfolio Decreases and Purchasers'
Yields, respectively.
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2.12 Amendment to Section 2.09(f). Section 2.09(f) of the Receivables
Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
(f) Without in any way limiting the obligation to account for
or pay the amounts required to be paid to the Agent pursuant
to paragraph (c) of this Section, until such time as the Agent
shall have assumed, pursuant to Section 2.07(b) or Section
6.03, the Sellers' duties for the billing and collection of
the Purchased Receivables, to the extent that the collections
in any currency during any Settlement Period (or part thereof
prior to the date of such assumption by the Agent) in respect
of the Opening Receivables payable in such currency exceeds
the sum of (i) the amount by which the Opening Balance with
respect to Purchased Receivables payable in such currency for
such Settlement Period exceeds the aggregate Net Balances of
such Opening Receivables as of the Domestic Business Day next
preceding the Reset Date for such Settlement Period, plus (ii)
the Purchasers' Yield with respect to Purchased Receivables
payable in such currency for such Settlement Period, plus
(iii) the Facility Fees and Agency Fees for such Settlement
Period, the Sellers may retain such excess collections
(herein, the "Sellers' Servicing Fee" for such Settlement
Period) for their own account as compensation for such
Settlement Period (or portion thereof) in respect of such
servicing. In the event the Agent shall so assume the Sellers'
duties for the billing and collection of the Purchased
Receivables, such excess shall be retained by the Agent, for
the ratable benefit of the Purchasers, as collateral security
for Sellers' Obligations (and for such purpose and to such
extent, each Seller hereby grants to the Agent, as security
for the Sellers' Obligations, a security interest in such
funds).
2.13 Amendment to Section 2.10(a). Section 2.10(a) of the Receivables
Purchase Agreement is hereby amended by adding an additional sentence to the end
thereof to read as follows:
All payments to be made by the Sellers hereunder shall be made
in Dollars, except for amounts attributable to Portfolio
Decreases with respect to Foreign Currency Denominated
Receivables, to Purchasers' Yields with respect to Foreign
Currency Denominated Receivables, and to repurchases of
Foreign Currency Denominated Receivables pursuant to Section
6.02 which shall be payable in the currency or currencies in
which such Foreign Currency Denominated Receivables are
payable.
2.14 Amendment to Section 2.10(b). Section 2.10(b) of the Receivables
Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
(b) Payment of any amount due from any Seller hereunder
(including, without limitation, pursuant to any provision of
Article II, Article VI, Article IX or Article X) that is not
paid when due in accordance with the provisions hereof shall
bear interest, payable upon demand, for each day until paid at
a rate per annum equal to (i) if such amount is payable in
Dollars, the sum of the Base Rate
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for such day plus the Applicable Base Rate Margin for such day
plus 2.0% per annum and (ii) if such amount is payable in a
foreign currency, the IBOR Rate with respect to such currency
for such day plus the Applicable IBOR Margin for such day plus
2.0% per annum.
2.15 Amendments to Section 2.10(c). (a) Section 2.10(c) is hereby
amended by changing the first reference to Portfolio Increase therein, on the
fifth line thereof, to Portfolio Increases and by inserting on the fifth line
thereof, immediately after the term "Portfolio Increases", the following phrase:
in the currency or currencies in which such Portfolio
Increases are payable,
(b) Section 2.10(c) is hereby amended by inserting on the twenty fourth
line thereof, immediately after the term "Federal Funds Rate", the following
phrase:
with respect to Dollar Denominated Receivables and a rate per
annum equal to the IBOR for such day with respect to Foreign
Currency Denominated Receivables (calculated seperately for
each currency in which such Foreign Currency Denominated
Receivables are payable)
2.16 Amendments to Section 2.13. (a) Section 2.13(a)(i) of the
Receivables Purchase Agreement is hereby amended and restated in its entirety to
read as follows:
(i) The Sellers, upon 30 days prior notice, may at any time
require each of the Purchasers to sell all of its right, title
and interest in all the Purchased Receivables to a third party
or third parties designated in such notice on the Ending Date
of any Settlement Period ending on or after the Commitment
Expiration Date or Commitment Termination Date, as applicable.
The purchase price, which shall be paid on such Ending Date,
shall be equal to the sum of (A) for each Purchaser, the sum
of the products obtained by multiplying such Purchaser's
Beneficial Interest Percentage by the aggregate Net Balances
of Purchased Receivables (calculated separately for each
different currency in which such Purchased Receivables are
payable), which amounts shall be payable in the currencies in
which such Purchased Receivables are payable on the Domestic
Business Day next preceding the Reset Date for such Settlement
Period plus (B) to the extent not otherwise accounted for and
paid pursuant to Section 2.09, all Purchasers' Yields accrued
to such Ending Date and all Facility Fees for such Settlement
Period, subject to any necessary adjustment required by
Section 2.10(c)(i)(A) and Section 2.10(c)(ii), respectively,
plus (C) all other amounts payable to the Purchasers and the
Agent hereunder and under the other Facility Documents; or
(b) Section 2.13(b) of the Receivables Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
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(b) If on the Domestic Business Day next preceding the Reset
Date for any Settlement Period ending on or after the
Commitment Termination Date or the Commitment Expiration Date,
as applicable, the Portfolio Balance is less than $12,000,000,
the Sellers shall have the right on the Ending Date for such
Settlement Period, upon notice delivered to the Agent not less
than 5 Domestic Business Days prior to such Ending Date, to
repurchase from the Purchasers all of the Purchased
Receivables for a repurchase price equal to the sum of (i) for
each Purchaser, the sum of the products obtained by
multiplying such Purchaser's Beneficial Interest Percentage by
the aggregate Net Balances of Purchased Receivables
(calculated separately for each different currency in which
such Purchased Receivables are payable), which amounts shall
be payable in the currencies in which such Purchased
Receivables are payable on the Domestic Business Day next
preceding such Reset Date, plus (ii) to the extent not
otherwise accounted for and paid pursuant to Section 2.09, all
Purchasers' Yield accrued to such Ending Date and all Facility
Fees for such Settlement Period, subject to any necessary
adjustment required by Section 2.10(c)(i)(A) and Section
2.10(c)(ii), respectively, plus (iii) all other amounts
payable to the Purchasers and the Agent hereunder and under
the other Facility Documents. Any notice of repurchase
delivered pursuant to this Section shall be irrevocable.
2.17 Amendment to Section 5.10. The last sentence of Section
5.10 of the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
Xxxxxxx agrees upon the reasonable request of the Agent, to
deliver to the Agent the most currently available estimate of
the Withdrawal Liability of Xxxxxxx and members of the
Controlled Group with respect to each Multiemployer Plan, if
any, in which they participate.
2.18 Amendment to Section 6.02. Section 6.02 of the
Receivables Purchase Agreement is hereby amended and restated in its entirety to
read as follows:
SECTION 6.02. Purchase or Repurchase Upon a Repurchase Event. If a
Repurchase Event shall occur and be continuing;
(a) If such Repurchase Event is a Repurchase Event set forth
in Section 6.01(l) or Section 6.01(m), any Purchaser may, by
notice to Xxxxxxx, the Agent and the other Purchasers, (i)
terminate and be relieved of all of its obligations to the
Sellers hereunder and under its Commitment (which obligations
shall thereupon terminate, unless such Purchaser's Commitment
is assumed by a third party that acquires such Purchaser's
Beneficial Interest) and (ii) require the Sellers to, and the
Sellers shall, purchase from such Purchaser such Purchaser's
Beneficial Interest on a date specified in such notice (that
shall be not less than 5 nor more than 15 Domestic Business
Days after such notice is given), at a purchase price (payable
to the Agent for such Purchaser's account in the manner and at
the time set forth in Section 2.10(a)) equal to the sum of (I)
such Purchaser's Beneficial
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Interest Percentage multiplied by the Opening Balances
(calculated separately with respect to each currency in which
the Purchased Receivables are payable) for the Settlement
Period during which the date so specified for such purchase
shall occur plus (II) subject to any necessary adjustment
required by Section 2.10(c)(i)(A), the product obtained by
multiplying (A) such Purchaser's Commitment Percentage times
(B) the product of such Opening Balances (calculated
separately for each currency in which the Purchased
Receivables are payable) times the Yield Rates applicable to
Purchased Receivables payable in such currencies for such
Settlement Period times (C) a fraction, the denominator of
which is 360 and the numerator of which is the number of days
elapsed from (and including) the first day of such Settlement
Period to (but excluding) the date so specified for such
purchase plus (III) subject to any necessary adjustment
required by Section 2.10(c)(ii), an amount in respect of
Facility Fees equal to the product obtained by multiplying (A)
such Purchaser's Commitment Percentage times (B) the product
of the Facility Fee Rate then in effect times the total
Commitments as in effect on the first day of such Settlement
Period times (C) a fraction, the denominator of which is 360
and the numerator of which is the number of days elapsed from
(and including) the first day of such Settlement Period to
(but excluding) the date so specified for such purchase, plus
(IV) all other amounts payable to such Purchaser hereunder and
under the other Facility Documents;
(b) if such Repurchase Event is a Repurchase Event set forth
in Section 6.01(g) or Section 6.01(h), (i) all of the
Commitments shall be automatically terminated, immediately
upon the occurrence thereof, without notice or other action by
or on behalf of the Agent or any Purchaser, and (ii) the
Sellers shall purchase from the Purchasers all of the
Purchased Receivables on that date that is 5 Domestic Business
Days after the occurrence of such Repurchase Event at a
purchase price (payable to the Agent for the Purchasers'
account (or the Agent's account, as the case may be) in the
manner and at the time set forth in Section 2.10(a)) equal to
the sum of (I) for each Purchaser, such Purchaser's Beneficial
Interest Percentage multiplied by the Opening Balances
(calculated separately for each currency in which the
Purchased Receivables are payable) for the Settlement Period
during which such fifth Domestic Business Day shall occur plus
(II) subject to any necessary adjustment required by Section
2.10(c)(i)(A), the products obtained by multiplying (A) the
products of such Opening Balances times the applicable Yield
Rates (calculated separately for each currency in which the
Purchased Receivables are payable) for such Settlement Period
times (B) a fraction, the denominator of which is 360 and the
numerator of which is the number of days elapsed from (and
including) the first day of such Settlement Period to (but
excluding) such fifth Domestic Business Day plus (III) subject
to any necessary adjustment required by Section 2.10(c)(ii),
an amount in respect of Facility Fees equal to the product
obtained by multiplying (A) the product of the Facility Fee
Rate then in effect times the total Commitments as in effect
on the first day of such Settlement Period times (B) a
fraction, the denominator of which is 360 and the numerator of
which is the number of days elapsed from (and including) the
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first day of such Settlement Period to (but excluding) such
fifth Domestic Business Day, plus (IV) all other amounts
payable to the Purchasers and the Agent hereunder and under
the other Facility Documents; and
(c) if such Repurchase Event is any Repurchase Event other
than those referred to in paragraph (a) or (b) of this
Section, the Required Purchasers may, by notice from the Agent
(given at the direction of the Required Purchasers) to Xxxxxxx
(i) terminate all of the Commitments (which shall thereupon
terminate) and (ii) require the Sellers to, and the Sellers
shall, purchase from the Purchasers all of the Purchased
Receivables on a date specified in such notice (that shall be
not less than 5 nor more than 15 Domestic Business Days after
such notice is given), at a purchase price (payable to the
Agent for the Purchasers' account (or the Agent's account, as
the case may be) in the manner and at the time set forth in
Section 2.10(a)) equal to the sum of (I) for each Purchaser,
such Purchaser's Beneficial Interest Percentage multiplied by
the Opening Balances (calculated separately for each currency
in which the Purchased Receivables are payable) for the
Settlement Period during which the date so specified for such
purchase shall occur plus (II) subject to any necessary
adjustment required by Section 2.10(c)(i)(A), the products
obtained by multiplying (A) the products of such Opening
Balances times the applicable Yield Rates (calculated
separately for each currency in which the Purchased
Receivables are payable) for such Settlement Period times (B)
a fraction, the denominator of which is 360 and the numerator
of which is the number of days elapsed from (and including)
the first day of such Settlement Period to (but excluding) the
date so specified for such purchase plus (III) subject to any
necessary adjustment required by Section 2.10(c)(ii), an
amount in respect of Facility Fees equal to the product
obtained by multiplying (A) the product of the Facility Fee
Rate then in effect times the total Commitments as in effect
on the first day of such Settlement Period times (B) a
fraction, the denominator of which is 360 and the numerator of
which is the number of days elapsed from (and including) the
first day of such Settlement Period to (but excluding) the
date so specified for such purchase, plus (IV) all other
amounts payable to the Purchasers and the Agent hereunder and
under the other Facility Documents.
2.19 Amendment to Section 8.01. Section 8.01 of the Receivables
Purchase Agreement is hereby amended and restated in its entirety to read
as follows:
SECTION 8.01. Basis for Determining Euro-Dollar Rate or IBOR
Rate Inadequate or Unfair. If on or prior to the first day of any
Settlement Period:
(a) the Agent determines in good faith that deposits in
Dollars or any foreign currency (in the applicable amounts)
are not being offered in the applicable market for such
Settlement Period, or
(b) the Required Purchasers advise the Agent in good faith
that the London Interbank Offered Rate or the IBOR Rate for a
particular foreign currency as
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determined by the Agent will not adequately and fairly reflect
the cost to such Purchasers of maintaining the Euro-Dollar
Rate or the IBOR Rate for a particular foreign currency as the
Yield Rate for such Settlement Period,
the Agent shall forthwith give notice thereof to Xxxxxxx and
the Purchasers, whereupon until the Agent notifies Xxxxxxx
that the circumstances giving rise to such suspension no
longer exist, the Yield Rate with respect to Dollar
Denominated Receivables for each Settlement Period shall be
the Adjusted Base Rate for such Settlement Period and the
obligation of the Purchasers to purchase Foreign Currency
Denominated Receivables payable in the foreign currency
subject to such notice shall be suspended. The Agent (in the
case of clause (a) above) and the Purchasers (in the case of
clause (b) above) agree to deliver to Xxxxxxx a written
explanation, in reasonable detail, of the basis for their
determination.
2.20 Amendment to Section 8.02. Section 8.02 of the Receivables
Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
SECTION 8.02. Illegality. (a) If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or
administration thereof by any governmental authority,
regulatory body, central bank or comparable agency charged
with the interpretation or administration thereof (any such
authority, bank or agency being referred to as an "Authority"
and any such event being referred to as a "Change of Law"), or
compliance by any Purchaser (or its Office) with any request
or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for any
Purchaser (or its Office) to maintain the Euro- Dollar Rate or
any applicable IBOR Rate as the Yield Rate, and such Purchaser
shall so notify the Agent, the Agent shall forthwith give
notice thereof to the other Purchasers and Xxxxxxx, whereupon
until such Purchaser notifies Xxxxxxx and the Agent that the
circumstances giving rise to such suspension no longer exist,
the obligation of such Purchaser to maintain the Euro-Dollar
Rate or any applicable IBOR Rate as the Yield Rate for any
Settlement Period shall be suspended. Before giving any notice
to the Agent pursuant to this Section, such Purchaser shall
designate a different Office if such designation will avoid
the need for giving such notice and will not, in the judgment
of such Purchaser, be otherwise disadvantageous to such
Purchaser.
(b) If any Purchaser shall determine that it may not lawfully
continue to maintain the Euro-Dollar Rate as the Yield Rate
for the then-current or any subsequent Settlement Period and
shall so specify in such notice, if the Yield Rate for any
such affected Settlement Period shall be the Euro-Dollar Rate,
the Yield Rate shall then be automatically converted to, and
for each Settlement Period thereafter during the period of
such suspension for which Xxxxxxx shall have selected the
Euro-Dollar Rate as the Yield Rate the Yield Rate shall be, a
blended rate based on the Adjusted Base Rate for such
Settlement Period for
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each such Purchaser, to the extent of and in proportion to its
Beneficial Interest, and on the Euro-Dollar Rate for such
Settlement Period for each other Purchaser; in such
circumstance, the Agent shall make appropriate adjustments in
distributing to the Purchasers their respective pro rata
shares of amounts paid by the Sellers in respect of the
Purchasers' Yield for each such Settlement Period.
(c) If any Purchaser shall determine that it may not lawfully
continue to maintain an applicable IBOR Rate as the Yield Rate
for one or more Foreign Currency Denominated Receivables, the
Sellers shall upon notice from such Purchaser, purchase (on
the date specified in such notice) such Purchaser's Beneficial
Interest in such Foreign Currency Denominated Receivables at a
purchase price in the foreign currency or currencies in which
such Foreign Currency Denominated Receivables are payable
equal to the sum of (I) such Purchaser's Beneficial Interest
Percentage multiplied by the Opening Balances with respect to
such Foreign Currency Denominated Receivables for the
Settlement Period during which the date so specified for such
purchase shall occur plus (II) subject to any necessary
adjustment required by Section 2.10(c)(i)(A), the product
obtained by multiplying (A) such Purchaser's Commitment
Percentage times (B) the product of such Opening Balances
times the Yield Rates applicable to such Foreign Currency
Denominated Receivables for such Settlement Period times (c) a
fraction, the denominator of which is 360 and the numerator of
which is the number of days elapsed from (and including) the
first day of such Settlement Period to (but excluding) the
date so specified for such purchase.
2.21 Amendments to Section 8.03 . (a) Section 8.03 of the Receivables
Purchase Agreement is hereby amended by inserting, after the term "Euro-Dollar
Rate" at each place in Section 8.03 that it appears, the phrase:
or any applicable IBOR Rate
(b) Section 8.03(a)(ii) of the Receivables Purchase Agreement is hereby
amended by inserting in line four thereof, immediately after the term
"Euro-Dollar Reserve Percentage", the following phrase:
or in an applicable IBOR Reserve Percentage
(c) Section 8.03(a)(iii) of the Receivables Purchase Agreement is
hereby amended by deleting the phrase "the London interbank" in line one thereof
and substituting in its place the following phrase:
any applicable
2.22 Amendment to Section 8.04. Section 8.04 of the Receivables
Purchase Agreement is hereby amended by inserting in the eleventh line thereof
immediately after the term "Euro- Dollar Rate", the following phrase:
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or any applicable IBOR Rate
2.23 Addition of New Section 8.05. A new section is hereby added to the
Receivables Purchase Agreement as Section 8.05 to read as follows:
SECTION 8.05. Failure to Pay in Foreign Currency. If the
Sellers are unable for any reason to effect payment in a foreign
currency as required by this Receivables Purchase Agreement or if the
Sellers shall default in their obligations with respect to Foreign
Currency Denominated Receivables, each Purchaser may, through the
Agent, require such payment to be made in Dollars in the Dollar
Equivalent amount of such payment. In any case in which the Sellers
shall make such payment in Dollars, the Sellers agree to hold the
Purchasers harmless from any loss incurred by the Purchasers arising
from any change in the value of Dollars in relation to such foreign
currency between the date such payment became due and the date of
payment thereof.
2.24 Addition of New Section 8.06. A new section is hereby added to the
Receivables Purchase Agreement as Section 8.06 to read as follows:
SECTION 8.06. Judgment Currency. If for the purpose
of obtaining judgment in any court or enforcing any such judgment it is
necessary to convert any amount due in any foreign currency into any
other currency, the rate of exchange used shall be the Agent's spot
rate of exchange for the purchase of the foreign currency with such
other currency at the close of business on the Foreign Currency
Business Day preceding the date on which judgment is given or any order
for payment is made. The obligations of the Sellers in respect of any
amount due from them hereunder shall, notwithstanding any judgment or
order for a liquidated sum or sums in respect of amounts due hereunder
or under any judgment or order in any other currency or otherwise be
discharged only to the extent that on the Foreign Currency Business Day
following receipt by the Agent of any payment in a currency other than
the relevant foreign currency the Agent is able (in accordance with
normal banking procedures) to purchase the relevant foreign currency
with such other currency. If the amount of the relevant foreign
currency that the Agent is able to purchase with such other currency is
less than the amount due in the relevant foreign currency,
notwithstanding any judgment or order, the Sellers shall indemnify the
Purchasers for the shortfall.
2.25 Amendment to Section 9.07. Section 9.07 of the Receivables
Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
SECTION 9.07. Subrogation. Notwithstanding anything herein to
the contrary, Stanley hereby waives until a period of time has expired
equal to 366 days after all Obligations of the Sellers to the Purchasers
have been paid, and the Commitments have been terminated, any right of
subrogation (under contract, Section 509 of the Bankruptcy Code or
otherwise) or any other right of indemnity, reimbursement or contribution
and hereby waives until the above referenced period of time has expired,
any right to enforce any remedy that any Purchaser or the Agent now has or
may hereafter have against Bostitch, Mechanics Tools or any endorser or any
other guarantor of all or any part of the Guaranteed
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Obligations, and Stanley hereby waives, until the above referenced period
of time has expired, any benefit of, and any right to participate in, any
security or collateral given to any Purchaser or the Agent to secure
payment or performance of the Guaranteed Obligations or any other liability
of Bostitch or Mechanics Tools to any Purchaser. The waiver contained in
this Section shall continue and survive the termination of this Agreement
and the final and indefeasible payment in full of the Guaranteed
Obligations.
2.26 Amendment to Notice Address for Sellers. The address for notices
to the Sellers is hereby amended to be as set forth on the signature pages of
this Agreement.
2.27 Amendment Increasing Aggregate Commitments and Adding Fleet Bank
of Massachusetts, N.A. as a Purchaser. The Receivables Purchase Agreement shall
be amended by increasing the total amount of the Commitments to $110,000,000.
The individual Commitments of the Existing Purchasers set forth on the signature
pages of the Receivables Purchase Agreement shall be restated to be equal to the
respective amounts set forth on the signature pages hereof opposite such
Existing Purchasers' respective names. Fleet Bank of Massachusetts, N.A. is
hereby added as a Purchaser (as defined in the Receivables Purchase Agreement) a
party to the Receivables Purchase Agreement and Fleet Bank of Massachusetts,
N.A. shall have all of the rights and obligations of a Purchaser thereunder. The
Office and the Commitment of Fleet Bank of Massachusetts, N.A. shall be as set
forth on the signature page hereof.
2.28 Amendment to Exhibit B. Exhibit B of the Receivables Purchase
Agreement is hereby amended by deleting the column heading "Original Amount" and
replacing it with the following:
Original Amount
and Currency Denomination
2.29 Amendment to Schedule 2.12. Schedule 2.12 of the Receivables
Purchase Agreement is hereby amended and restated in its entirety to read as set
forth on Schedule 2.12 hereto.
2.30 Amendment to Exhibit D-1. Exhibit D-1 of the Receivables Purchase
Agreement is hereby amended and restated in its entirety, to read as set forth
on Exhibit D-1 hereto.
2.31 Amendment to Exhibit D-2. Exhibit D-2 of the Receivables Purchase
Agreement is hereby amended and restated in its entirety, to read as set forth
on Exhibit D-2 hereto.
2.32 Amendment to Exhibit I. Exhibit I of the Receivables Purchase
Agreement is hereby amended and restated in its entirety, to read as set forth
on Exhibit I hereto.
SECTION 3. No Other Amendment. Except for the amendments set forth
above, the text of the Receivables Purchase Agreement shall remain unchanged and
in full force and effect. This Amendment is not intended to effect, nor shall it
be construed as, a novation. The Receivables Purchase Agreement and this
Amendment shall be construed together as a single instrument and any reference
to the "Agreement" or any other defined term for the Receivables
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Purchase Agreement in the Receivables Purchase Agreement, any other Facility
Document or any certificate, instrument or other document delivered pursuant
thereto shall mean the Receivables Purchase Agreement as amended hereby and as
it may be amended, supplemented or otherwise modified hereafter.
SECTION 4. Representations and Warranties. The Sellers hereby represent
and warrant in favor of the Agent and the Purchasers as follows:
(a) No Default or Event of Default under the Receivables Purchase
Agreement has occurred and is continuing on the date hereof;
(b) The Sellers have the corporate power and authority to enter into
this Amendment and to do all acts and things as are required or contemplated
hereunder to be done, observed and performed by them;
(c) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of each of the Sellers and each of
this Amendment and the Receivables Purchase Agreement, as amended hereby
constitutes the legal, valid and binding obligation of the Sellers enforceable
against each of them in accordance with its terms; provided, that the
enforceability of each of this Amendment and the Receivables Purchase Agreement
as amended hereby is subject to general principles of equity and to bankruptcy,
insolvency and similar laws affecting the enforcement of creditors' rights
generally; and
(d) The execution and delivery of this Amendment and the Sellers'
performance hereunder and under the Receivables Purchase Agreement as amended
hereby do not and will not require the consent or approval of any regulatory
authority or governmental authority or agency having jurisdiction over the
Sellers other than those which have already been obtained or given, nor be in
contravention of or in conflict with the respective Articles of Incorporation or
Bylaws of the Sellers, or the provision of any statute, or any judgment, order
or indenture, instrument, agreement or undertaking, to which any Seller is a
party or by which any Seller's assets or properties are or may become bound.
SECTION 5. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 6. Governing Law. This Amendment shall be deemed to be made
pursuant to the laws of the State of Georgia with respect to agreements made and
to be performed wholly in the State of Georgia and shall be construed,
interpreted, performed and enforced in accordance therewith.
SECTION 7. Effective Date. This Amendment shall become effective as of
December 20, 1995 upon receipt by the Agent (i) from each of the parties hereto
of either a duly executed signature page from a counterpart of this Amendment or
a facsimile transmission of a duly executed signature page from a counterpart of
this Amendment, signed by such party; (ii) of a certified copy of a resolution
of the Board of Directors of The Xxxxxxx Works, authorizing the increase in the
aggregate Commitments; and (iii) of an incumbency certificate of the Sellers.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
SELLERS:
THE XXXXXXX WORKS
By: Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Its: Director, Corporate Finance
XXXXXXX-BOSTITCH, INC.
By: Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Its: Assistant Treasurer
STANLEY MECHANICS TOOLS, INC.
By: Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Its: Assistant Treasurer
Notice Address (All Sellers):
The Xxxxxxx Works
0000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Director, Corporate Finance
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Telex: N/A
Answerback: N/A
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COMMITMENTS
$37,000,000 WACHOVIA BANK OF GEORGIA, N.A.,
as a Purchaser
By: Xxxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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$29,000,000
BANQUE NATIONALE DE PARIS,
NEW YORK BRANCH, as a Purchaser
By: Xxxxxxx X. Xxxx
------------------------------
Xxxxxxx X. Xxxx
Title: Senior Vice President
and
By: Sophie Revillard Xxxxxxx
------------------------------
Sophie Revillard Xxxxxxx
Title: Vice President
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$29,000,000 ROYAL BANK OF CANADA,
as a Purchaser
By: Xxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxx
Title: Manager
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$15,000,000
FLEET BANK OF MASSACHUSETTS, N.A.
Purchaser
By: Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
Title: Vice President
Office:
000 Xxxx Xxxxxx, XXX 000
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-------------------------
TOTAL COMMITMENTS
$110,000,000
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SCHEDULE 2.12
Principal Offices, Location of Records, Etc.
A. Principal Offices and Exclusive Location of Records:
The Xxxxxxx Works
0000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Director, Corporate Finance
Xxxxxxx-Bostitch, Inc.
Xxxxx 0, Xxxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Credit Manager
Stanley Mechanics Tools, Inc.
(Principal Office)
00000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Vice President - Controller
Mac Tools, a Division of Stanley Mechanics Tools, Inc.
(Location of Records)
0000 Xxxxxx Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
B. Federal Employment Identification Numbers:
The Xxxxxxx Works 00-0000000
Stanley Mechanics Tools, Inc. 00-0000000
Xxxxxxx-Bostitch, Inc. 00-0000000
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EXHIBIT D-1
SETTLEMENT STATEMENT, ASSIGNMENT AND XXXX OF SALE
This Settlement Statement, Assignment and Xxxx of Sale (this "Settlement
Statement") is delivered pursuant to the Receivables Purchase Agreement, dated
as of December 1, 1993 (as amended from time to time and in effect on the date
hereof, the "Purchase Agreement"), by and among The Xxxxxxx Works, Stanley
Mechanics Tools, Inc. , Xxxxxxx-Bostitch, Inc., the purchasers from time to time
party thereto and Wachovia Bank of Georgia, National Association, as agent for
the Purchasers. Unless otherwise provided herein, terms defined in the Purchase
Agreement shall have the meanings herein as therein defined. This Settlement
Statement is made as of the Ending Date for the Settlement Period beginning on
___________, 199__ and ending on ____________, 199__ (the "Settlement Period").
PART I: RECONCILIATION AND SETTLEMENT
The Sellers hereby warrant and represent to the Purchasers that (a) the
Receivables Schedule attached to this Settlement Statement, setting forth the
information described therein with respect to each of the Closing Receivables
for the Settlement Period, is true and correct and (b) the following information
is true and correct and accurately sets forth (i) the Portfolio Increases due
from the Purchasers to the Sellers, and/or the Portfolio Decreases due from the
Sellers to the Purchasers, as the case may be, for the Settlement Period, (ii)
the Purchasers' Yield and the Facility Fees for the Settlement Period due from
the Sellers to the Purchasers,1 and (iii) the amount of all Agent's Servicing
Fees and Agent's Costs and Expenses, if any, that became due to the Agent on or
before, but remain unpaid as of, the Ending Date of the Settlement Period.
A. Portfolio Decrease/Increase:
---------------------------
1. Dollar Denominated Receivables
a. Opening Balance: $____________
b. Closing Balance: $____________
c. Portfolio Decrease, if any, Due to Purchasers
(positive amount, if any, of a minus b): $____________
d. Portfolio Increase, if any, Due to Sellers
(negative amount, if any, of a minus b): $__________**
[2. Foreign Currency Denominated Receivables (________ currency)
--------
(1) Purchasers' Yield and Facility Fees may be subject to adjustment as
provided in Section 2.10(c)(i) and (ii) of the Purchase Agreement.
1
28
a. Opening Balance ____________
b. Closing Balance ____________
c. Portfolio Decrease, if any, Due to Purchasers
(positive amount, if any, of a minus b): ____________
d. Portfolio Increase, if any, Due to Sellers
(negative amount, if any, of a minus b): __________](2)
B. Purchasers' Yield Due to Purchasers:
1. Dollar Denominated Receivables
Purchasers' Yield = a x b x c/360 = $____________
Where
a = Opening Balance for the Settlement Period
b = Yield Rate applicable to Dollar Denominated Receivables
for the Settlement Period = X + Y = _____%
Where:
X = Applicable Margin for the Settlement Period = _____%
(weighted average of Applicable Base Rate Margin or Applicable
Euro-Dollar Margin, as applicable, in effect for each day of
the Settlement Period)
Y = Adjusted Base Rate or Adjusted London Interbank = _____%
Offered Rate, as applicable, for the Settlement Period
c = Number of days in the Settlement Period
[2. Foreign Currency Denominated Receivables (_______currency)(3)
Purchasers' Yield = a x b x c/360 = ____________
--------
(2) Repeat item 2 as item 3, 4 etc. for each currency in which Foreign
Currency Denominated Receivables are payable.
(3) Repeat item 2 as item 3, 4 etc. for each currency in which Foreign
Currency Denominated Receivables are payable.
2
29
Where
a = Opening Balance for the Settlement Period
b = Yield Rate applicable to Foreign Currency Denominated
Receivables payable in ______ currency
for the Settlement Period = x + y = _____%
Where:
x = Applicable Margin for the Settlement Period = _____%
(weighted average of Applicable IBOR Margin in effect for each
day of the Settlement Period)
y = Adjusted Interbank Offered Rate for the Settlement Period = _____%
c = Number of days in the Settlement Period](3)
C. Facility Fees Due to Purchasers:
Facility Fees = a x b x c/360 = $____________
Where
a = Total Commitments as of first day of the Settlement Period
b = Facility Fee Rate for the Settlement Period = _____%
(weighted average of Facility Fee Rate in effect for each day of the Settlement
Period)
c = Number of days in the Settlement Period
D. Unpaid Agent's Servicing Fees: $____________
E. Unpaid Agent's Costs and Expenses: $____________
F. Total Due to Purchasers: $____________
G. Total Due to Sellers: $____________
____________________
3
30
PART II: ASSIGNMENT AND XXXX OF SALE
1. Each of the respective Sellers has sold, assigned and conveyed to
the Purchasers, and by these presents does hereby sell, assign, transfer, convey
and set over unto the Purchasers, all of such Seller's right, title and interest
in those Closing Receivables for the Settlement Period, identified in the
Receivables Schedule attached hereto, that are owned by such Seller and that
were not Opening Receivables for the Settlement Period (such Closing Receivables
are referred to herein as the "Subsequently Offered Receivables"), the sale,
assignment, transfer and conveyance hereunder being made under and subject to
the Purchase Agreement, it being acknowledged and agreed that, with respect to
each Subsequently Offered Receivable the Purchasers shall have all of the rights
and benefits provided under the Purchase Agreement.
2. Each Seller hereby warrants and represents to the Purchasers, with
respect to each Subsequently Offered Receivable so sold, assigned and conveyed
hereunder by such Seller, that
(a) such Seller (i) is the true, lawful and sole owner of such
Subsequently Offered Receivable, (ii) has good, absolute and marketable
title to such Subsequently Offered Receivable, free and clear of all
Liens of any nature, and (iii) has the right to sell, transfer and
assign such Subsequently Offered Receivable without restriction;
(b) the full Net Balance of such Subsequently Offered
Receivable, as shown on the Receivables Schedule attached hereto, is
owing;
(c) such Subsequently Offered Receivable (i) is payable in
Dollars or in the official currency of a country that is a member of
the Organization for Economic Cooperation and Development, (ii) is free
from allowances, discounts, credits, adjustments, defenses, set-offs or
counterclaims by any Obligor thereon of any kind against such Seller,
(iii) is not a Charged-Off Receivable or a Defaulted Receivable, (iv)
is not payable by any Obligor that is an Obligor under a Defaulted
Receivable or a Charged-Off Receivable, and (v) is not in repossession
or litigation; and
(d) to such Seller's best knowledge, such Subsequently Offered
Receivable is otherwise an Eligible Receivable in all respects.
3. This Settlement Statement may be signed in three counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
4. This instrument shall be governed by the laws of the State
of Georgia.
[Signatures follow on separate page]
4
31
IN WITNESS WHEREOF, the Sellers have executed this Settlement
Statement, Assignment and Xxxx of Sale as of the Ending Date for the Settlement
Period first above identified.
Dated: , 199__
THE XXXXXXX WORKS XXXXXXX-BOSTITCH, INC.
By: By:
Title: Title:
STANLEY MECHANICS TOOLS, INC.
By:
Title:
Receipt Acknowledged, this _____
day of _______________, 199___.
WACHOVIA BANK OF GEORGIA, NATIONAL ASSOCIATION, as Agent
By:
Title:
5
32
EXHIBIT D-2
AGENT'S SETTLEMENT STATEMENT
This Settlement Statement is delivered pursuant to the Receivables
Purchase Agreement, dated as of December 1, 1993 (as amended from time to time
and in effect on the date hereof, the "Purchase Agreement"), by and among The
Xxxxxxx Works, Stanley Mechanics Tools, Inc. , Xxxxxxx-Bostitch, Inc., the
purchasers from time to time party thereto and Wachovia Bank of Georgia,
National Association, as agent for the Purchasers. Unless otherwise provided
herein, terms defined in the Purchase Agreement shall have the meanings herein
as therein defined. This Settlement Statement is made as of the Ending Date for
the Settlement Period beginning on ___________, 199__ and ending on ___________,
199__ (the "Settlement Period").
The Agent hereby certifies to the Purchasers that during the Settlement
Period (or that portion thereof from and after the date on which, during such
Settlement Period, the Agent assumed the Seller's duties for the billing and
collection of Purchased Receivables) the Agent has received the aggregate sum of
______________ of good, collected funds in respect of collections of the
principal of and interest on the Opening Receivables (calculated solely with
respect to Dollar Denominated Receivables) for the Settlement Period, of which
$_________ represents payments of interest on such Opening Receivables, with the
$__________ balance representing payments of the principal of such Opening
Receivables; [and the Agent has received the aggregate sum of _________ of good,
calculated funds in respect of collections of the principal and interest on the
Opening Receivables (calculated solely with reference to Foreign Currency
Denominated Receivables payable in ______ currency) for the Settlement Period,
of which _______ represents payments of or interest on such Opening Receivables
with the _________ balance representing payments of the principal of such
Opening Receivables].(4)
Set forth below is the Agent's calculation of (a) the Portfolio
Decreases if any, for the Settlement Period, (b) the Purchasers' Yields and the
Facility Fees for the Settlement Period due from the Sellers to the Purchasers,
and (c) the amount of all Agent's Servicing Fees and Agent's Costs and Expenses
that became due to the Agent on or before, but remain unpaid as of, the Ending
Date of the Settlement Period.
A. Portfolio Decrease/Increase:
1. Dollar Denominated Receivables
5. Opening Balance: $____________
6. Closing Balance: $____________
--------
(4) Repeat bracketed language for each different currency in which Foreign
Currency Denominated Receivables are payable.
Page 1 of 4
33
7. Portfolio Decrease, if any, Due to Purchasers
(positive amount, if any, of a minus b): $____________
8. Portfolio Increase, if any, Due to Sellers
(negative amount, if any, of a minus b): $____________
[2. Foreign Currency Denominated Receivables (________ currency)
a. Opening Balance ____________
b. Closing Balance ____________
c. Portfolio Decrease, if any, Due to Purchasers
(positive amount, if any, of a minus b): ____________
d. Portfolio Increase, if any, Due to Sellers
(negative amount, if any, of a minus b): ____________](5)
B. Purchasers' Yield Due to Purchasers:
1. Dollar Denominated Receivables
Purchasers' Yield = a x b x c/360 = $___________
Where
a = Opening Balance for the Settlement Period
b = Yield Rate applicable to Dollar Denominated Receivables
for the Settlement Period = X + Y = _____%
Where:
X = Applicable Margin for the Settlement Period = _____%
(weighted average of Applicable Base Rate
Margin or Applicable Euro-Dollar Margin, as
applicable, in effect for each day of the Settlement
Period)
Y = Adjusted Base Rate or Adjusted London Interbank = _____%
Offered Rate, as applicable, for the Settlement Period
--------
(5) Repeat item 2 as item 3, 4 etc. for each currency in which Foreign
Currency Denominated Receivables are payable.
Page 2 of 4
34
c = Number of days in the Settlement Period
[2. Foreign Currency Denominated Receivables (_______currency)
Purchasers' Yield = a x b x c/360 = $____________
Where
a = Opening Balance for the Settlement Period
b = Yield Rate applicable to Foreign Currency Denominated
Receivables payable in ______ currency
for the Settlement Period = X + Y = _____%
Where:
x = Applicable Margin for the Settlement Period = _____%
(weighted average of or Applicable IBOR Margin in effect for each
day of the Settlement Period)
y = Adjusted Interbank Offered Rate for the Settlement Period = _____%
c = Number of days in the Settlement Period](6)
C. Facility Fees Due to Purchasers:
Facility Fees = a x b x c/360 = $____________
Where
a = Total Commitments as of first day of the Settlement Period
or, if the Commitments shall have expired or been terminated
prior to such date, the Opening Balance for the Settlement
Period
b = Facility Fee Rate for the Settlement Period = _____%
(weighted average of Facility Fee Rate in effect for each day of the
Settlement Period)
c = Number of days in the Settlement Period
D. Unpaid Agent's Servicing Fees: $____________
E. Unpaid Agent's Costs and Expenses: $____________
----------------------------
(6) Repeat item 2 as item 3, 4 etc. for each currency in which Foreign
Currency Denominated Receivables are payable.
Page 3 of 4
35
Dated: , 199__
WACHOVIA BANK OF GEORGIA, NATIONAL
ASSOCIATION, as Agent
By:
Title:
Page 4 of 4
36
EXHIBIT I
Form of Assignment and Acceptance
ASSIGNMENT AND ACCEPTANCE
Dated ________________ __, ____
Reference is made to the Receivables Purchase Agreement dated as of
December 1, 1993, (as amended, supplemented or otherwise modified and in effect
from time to time, the "Receivables Purchase Agreement"), among The Xxxxxxx
Works, a Connecticut corporation, Xxxxxxx-Bostitch, Inc., a Delaware
corporation, Stanley Mechanics Tools, Inc. , an Ohio corporation, the Purchasers
(as defined in the Receivables Purchase Agreement) and Wachovia Bank of Georgia,
National Association, as Agent (the "Agent"). Terms defined in the Receivables
Purchase Agreement are used herein with the same meaning.
_____________________________________________________ (the "Assignor") and
_____________________________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, a ______% interest in and to all
of the Assignor's rights and obligations under the Receivables Purchase
Agreement as of the Effective Date (as defined below) (including, without
limitation, a ______% interest (which on the Effective Date hereof is
$_______________) in the Assignor's Commitment and a ______% interest (which on
the Effective Date hereof is $_______________, being the product of the
Assignor's Commitment Percentage multiplied by the Portfolio Balance on the
Effective Date) in the Assignor's Beneficial Interest). From and after the
Effective Date (as hereinafter defined), the Commitment (if the Effective Date
shall be prior to the Commitment Expiration Date or the Commitment Termination
Date, as applicable), the Commitment Percentage and the Beneficial Interest
Percentage of the Assignor and the Assignee, respectively, shall be as set forth
below:
Commitment Beneficial
Commitment Percentage Interest Percentage
---------- ---------- -------------------
ASSIGNOR $___________ _____% _____%
ASSIGNEE $___________ _____% _____%
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Receivables Purchase Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Receivables Purchase Agreement or any other instrument or document
furnished pursuant thereto, other than that it is the legal and beneficial owner
of the interest being assigned by it hereunder, that such interest is free and
clear of any adverse claim and that as of the date hereof its Commitment
(without giving effect to assignments thereof that have not yet become
effective) is $_________________
37
and its Beneficial Interest in the Portfolio Balance (without giving effect to
assignments thereof that have not yet become effective) is $_________________
(using applicable exchange rates in effect on ____________, _____); and (ii)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of any Seller or the performance or observance by any
Seller of any of its obligations under the Receivables Purchase Agreement or any
other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the Receivables
Purchase Agreement, together with copies of the financial statements referred to
in Section 4.04(a) thereof (or any more recent financial statements of Stanley
and its Consolidated Subsidiaries delivered pursuant to Section 5.01(a) or (b)
thereof) and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance upon
the Agent, the Assignor or any other Purchaser and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Receivables Purchase
Agreement; (iii) confirms that it is an Eligible Purchaser; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Receivables Purchase Agreement and the other Facility
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations that by the terms of the
Receivables Purchase Agreement are required to be performed by it as a
Purchaser; (vi) specifies as its Office (and address for notices) the office set
forth beneath its name on the signature pages hereof, (vii) represents and
warrants that the execution, delivery and performance of this Assignment and
Acceptance are within its corporate powers and have been duly authorized by all
necessary corporate action, [and (viii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the
Receivables Purchase Agreement or such other documents as are necessary to
indicate that all such payments are subject to such taxes at a rate reduced by
an applicable tax treaty].7
4. The Effective Date for this Assignment and Acceptance shall be
_______________ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acknowledgment
by the Agent and to Stanley for execution by Stanley.
5. Upon such acknowledgment by the Agent and execution by Stanley, from and
after the Effective Date, (i) the Assignee shall be a party to the Receivables
Purchase Agreement and, to the extent rights and obligations have been
transferred to it by this Assignment and Acceptance, have the rights and
obligations of a Purchaser thereunder and (ii) the Assignor shall, to the extent
its rights and obligations have been transferred to the Assignee by this
Assignment and Acceptance, relinquish its rights (other than under Sections 8.03
and 8.04 of the Receivables Purchase Agreement) and be released from its
obligations under the Receivables Purchase Agreement.
___________________
(7 If the Assignee is organized under the laws of a jurisdiction outside the
United States.
- 2 -
38
6. Upon such acknowledgment by the Agent and execution by Stanley, from and
after the Effective Date, the Agent shall make all payments in respect of the
interest assigned hereby to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments for periods prior to such acceptance by
the Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:_____________________________________
Title:__________________________________
[NAME OF ASSIGNEE]
By:_____________________________________
Title:__________________________________
Office:
[Address]
CONSENTED TO, this ____
day of _____________, 199__
THE XXXXXXX WORKS
By:_____________________________
Title:____________________________
ACKNOWLEDGED, this ____
day of _____________, 199__
WACHOVIA BANK OF GEORGIA,
NATIONAL ASSOCIATION., as Agent
By:_______________________________
Title:______________________________
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