EXHIBIT 4.12
ORIGINATOR RECEIVABLES PURCHASE AGREEMENT
among
UNOVA Industrial Automation Systems, Inc.
and
Intermec Technologies Corporation
as Sellers
and
UNOVA, Inc.
as Purchaser
Dated as of June 18, 1999
ORIGINATOR RECEIVABLES PURCHASE AGREEMENT
This ORIGINATOR RECEIVABLES PURCHASE AGREEMENT, dated as of
June 18, 1999 (as amended, supplemented or otherwise modified and in effect
from time to time, this "AGREEMENT"), among UNOVA Industrial Automation
Systems, Inc., a Delaware corporation, as seller ("IAS"), Intermec
Technologies Corporation, a Washington corporation, as seller ("INTERMEC",
collectively with IAS, the "SELLERS"), and UNOVA, Inc., as purchaser (the
"PURCHASER").
W I T N E S S E T H :
WHEREAS, the Purchaser desires to purchase from each of the
Sellers from time to time certain accounts receivable owing from Obligors and
which are generated in the normal course of each of the Sellers' businesses,
pursuant to, or evidenced by purchase orders, invoices or other written
agreements or with invoices on open accounts;
WHEREAS, each of the Sellers desire to sell and assign from
time to time such certain accounts receivable to the Purchaser upon the terms
and conditions hereinafter set forth;
WHEREAS, concurrently herewith, the Purchaser, as seller, will
sell and transfer the Receivables to KCH Funding, L.L.C. ("KCH") pursuant to
that certain Receivables Purchase Agreement (the "Receivables Purchase
Agreement") dated as of the date hereof;
WHEREAS, concurrently herewith, KCH will transfer certain of
the Receivables to Nationsbank, N.A., as agent, pursuant to the Transfer
Agreement;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed by
and between the Purchaser and each of the Sellers as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. DEFINITIONS.
All capitalized terms used herein shall have the meanings
specified herein or, if not so specified, the meaning specified in, or
incorporated by reference into, the Transfer Agreement, and shall include in the
singular number the plural and in the plural number the singular:
"ADVANCE" shall have the meaning specified in Section 3.2(a).
"ELIGIBLE RECEIVABLE" means, at any time, any Receivable:
(i) which has been originated by a Seller and with
respect to which the applicable Seller, immediately
prior to the transfer hereunder, has good title, free
and clear of all Adverse Claims;
(ii) the Obligor of which is a United States resident at
the time of the initial creation of an interest
therein hereunder, is not an Affiliate or employee of
any of the parties hereto, and is not a government or
a governmental subdivision or agency;
(iii) which is not a Defaulted Receivable at the time of
the initial creation of an interest therein
hereunder;
(iv) which is not a Delinquent Receivable at the time of
the initial creation of an interest therein
hereunder; provided, that for the initial purchase
only, the term "eligible receivable" shall be deemed
not to include this clause;
(v) which, (A) arises pursuant to a Contract with respect
to which the applicable Seller has performed all
obligations required to be performed by it
thereunder, including without limitation shipment of
the merchandise and/or the performance of the
services purchased thereunder; (B) has been billed;
and (C) according to the Contract related thereto, is
required to be paid in full within sixty (60) days of
the original invoice date therefor;
(vi) which is an "eligible asset" as defined in Rule 3a-7
under the Investment Company Act of 1940, as amended;
(vii) a purchase of which with the proceeds of Commercial
Paper would constitute a "current transaction" within
the meaning of Section 3(a)(3) of the Securities Act
of 1933, as amended;
(viii) which is an "account" or "chattel paper" and is not
evidenced by instruments within the meaning of
Article 9 of the UCC of all applicable jurisdictions;
(ix) which is denominated and payable only in United
States dollars in the United States;
(x) which, arises under a Contract that together with
such Receivable, is in full force and effect and
constitutes the legal, valid and binding obligation
of the related Obligor enforceable against such
Obligor in accordance with its terms and is not
subject to any litigation, dispute, offset,
counterclaim or other defense (other than the
bankruptcy of the Obligor) known to the applicable
Seller;
(xi) which, together with the Contract related thereto,
does not contravene in any material respect any laws,
rules or regulations applicable thereto (including,
without limitation, laws, rules and regulations
relating to truth in lending, fair credit billing,
fair credit reporting, equal credit opportunity, fair
debt collection practices and privacy) and with
respect to which no part of the Contract related
thereto is in violation of any such law, rule or
regulation in any material respect;
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(xii) which (A) satisfies all applicable requirements of
the applicable Credit and Collection Policy, and (B)
is assignable without the consent of the Obligor
thereunder;
(xiii) which was generated in the ordinary course of the
applicable Seller's business;
(xiv) the Obligor of which has been directed to make all
payments to a specified Lock-Box Account;
(xv) the assignment of which under this Agreement by the
applicable Seller to the Purchaser does not violate,
conflict or contravene any applicable laws, rules,
regulations, orders or writs or any contractual or
other restriction, limitation or encumbrance in any
material respect;
(xvi) except as permitted by Section 6.2 of the Transfer
Agreement, which has not been compromised, adjusted
or modified (including by the extension of time for
payment or the granting of any discounts, allowances
or credits); provided, however, that only such
portion of such Receivable that is the subject of
such compromise, adjustment or modification shall be
deemed to be ineligible pursuant to the terms of this
clause (xvi); and
(xvii) which is not a Receivable originated by the
Cincinnati Machine Division of IAS until such time as
the Purchaser shall have notified IAS that this
clause is no longer effective.
"PURCHASE PERCENTAGE" shall mean for any day the fair market
value discount rate as mutually agreed between the Purchaser and the Seller for
each month during the term hereof (the application of such rate to result in a
Purchase Price which constitutes fair consideration and approximate fair market
value for the Receivables and related property then conveyed hereunder
reasonably approximate to an arms length transaction between unaffiliated
parties as determined by the Purchaser and the Seller) or, in the absence of
such agreement for such month, the quotient (expressed as a percentage) of (a)
one DIVIDED by (b) the sum of (i) one, plus (ii) the product of (A) the prime
rate (as announced by NationsBank, N.A.) on such date and (B) a fraction, the
numerator of which is the average scheduled number of days to maturity for such
Receivables pursuant to the related Contracts, and the denominator of which is
365.
"PURCHASE DATE" means each day on which either of the Sellers
sells and Purchaser purchases any Receivables hereunder.
"PURCHASE PRICE" shall have the meaning set forth in Section
3.1 hereof.
"PURCHASER" means UNOVA, Inc., a Delaware corporation, and its
successors and assigns.
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"RECEIVABLE" means the indebtedness, obligation or liability
owed to a Seller by any Obligor under a Contract, whether constituting an
account, chattel paper, instrument, investment property or general intangible,
arising in connection with the sale or lease of merchandise or the rendering of
services by the applicable Seller and includes the right to payment of any
Finance Charges and other obligations of such Obligor with respect thereto;
provided, however, that only Receivables of IAS which are generated from the
divisions listed on Annex I, attached hereto (as such Annex may be modified from
time to time), shall be included within the scope of this Agreement and all
other receivables generated from other divisions of IAS are excluded hereunder).
Notwithstanding the foregoing, once a Receivable has been repurchased pursuant
to Section 6.1 hereof, it shall no longer constitute a Receivable hereunder.
"RELATED SECURITY" means with respect to any Receivable, all
of the applicable Seller's rights, title and interest in, to and under:
(i) the merchandise (including returned or repossessed
merchandise), if any, the sale of which by a Seller
gave rise to such Receivable;
(ii) all other security interests or liens and property
subject thereto from time to time, if any, purporting
to secure payment of such Receivable, whether
pursuant to the Contract related to such Receivable
or otherwise, together with all financing statements
signed by an Obligor describing any collateral
securing such Receivable;
(iii) all guarantees, indemnities, warranties, insurance
(and proceeds and premium refunds thereof) or other
agreements or arrangements of any kind from time to
time supporting or securing payment of such
Receivable whether pursuant to the Contract related
to such Receivable or otherwise;
(iv) all Records related to such Receivable;
(v) all Lock-Box Accounts and Lock-Box Agreements; and
(vi) all Proceeds of any of the foregoing.
"RELEVANT UCC" shall mean the Uniform Commercial Code as in
effect in the States of New York, California, Michigan and Washington.
"SELLER" shall mean either of IAS or Intermec, its successors
and assigns.
"SUBORDINATED NOTE" shall have the meaning specified in
Section 3.2(a).
"TRANSFER AGREEMENT" shall mean the Transfer and
Administration Agreement, dated as of June 18, 1999, by and among the Purchaser,
KCH Funding, L.L.C., Enterprise Funding Corporation and Nationsbank, N.A., as
such agreement may be amended, modified or supplemented from time to time.
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Section 1.2. OTHER TERMS.
All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles. All terms
used in Article 9 of the Relevant UCC, and not specifically defined herein, are
used herein as defined in such Article 9.
Section 1.3. COMPUTATION OF TIME PERIODS. Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding."
ARTICLE II.
PURCHASE, CONVEYANCE AND SERVICING OF RECEIVABLES
Section 2.1. SALE.
(a) Upon the terms and subject to the conditions set forth
herein, each of the Sellers hereby agrees to sell, convey, transfer and assign
to the Purchaser, and the Purchaser hereby agrees to purchase and accept such
conveyance, transfer and assignment from each of the Sellers, on the terms and
subject to the conditions specifically set forth herein, of all of the
applicable Sellers right, title and interest, whether now owned or hereafter
acquired, in, to and under certain Receivables and the Related Security,
Collections and proceeds relating thereto, provided that the Termination Date
has not occurred. Any such foregoing sale, assignment, transfer and conveyance
does not constitute an assumption by the Purchaser of any obligations of the
applicable Seller or any other Person to Obligors or to any other Person in
connection with such Receivables and the Related Security, Collections and
proceeds relating thereto or other agreement and instrument relating thereto. In
evidence of such sale, the parties hereto shall execute a certificate of sale in
the form of Exhibit C annexed hereto.
(b) In connection with any such foregoing sale, each of the
Sellers agrees to record and file on, prior to or contemporaneously with the
Closing Date, at its own expense, a financing statement or statements with
respect to the Receivables and the other property described in Section 2.1(a)
sold and to be sold by the applicable Seller hereunder meeting the requirements
of applicable state law in such manner and in such jurisdictions as are
necessary to perfect and protect the interests of the Purchaser created hereby
under the Relevant UCC (subject, in the case of Related Security constituting
returned inventory, to the applicable provisions of Section 9-306 of the
Relevant UCC) against all creditors of and purchasers from the applicable
Seller, and to deliver either the originals of such financing statements or a
file-stamped copy of such financing statements or other evidence of such filings
to the Purchaser on the Closing Date.
(c) Each of the Sellers agrees that from time to time, at its
expense, it will promptly execute and deliver all instruments and documents and
take all actions as may be necessary or as the Purchaser may reasonably request
in order to perfect or protect the interest of the Purchaser in the Receivables
and other property purchased hereunder or to enable the Purchaser to exercise or
enforce any of its rights hereunder. Without limiting the foregoing, the
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applicable Seller will, in order to accurately reflect any purchase and sale
transaction, execute and file such financing or continuation statements or
amendments thereto or assignments thereof (as permitted pursuant hereto) as
may be reasonably requested by the Purchaser, and upon the request of the
Purchaser, xxxx its month-end aged trial balance computerized records with a
legend describing the purchase by the Purchaser of Receivables and the
subsequent transfer thereof to KCH and the further subsequent transfer to the
Company pursuant to the Transfer Agreement and stating "An interest in these
accounts receivable has been conveyed to the Company pursuant to a Transfer
and Administration Agreement dated as of June 18, 1999." The applicable
Seller shall, upon the reasonable request of the Purchaser, obtain such
additional search reports as the Purchaser shall request. To the fullest
extent permitted by applicable law, the Purchaser shall be permitted to sign
and file continuation statements and amendments thereto and assignments
thereof without the applicable Seller's signature. Carbon, photographic or
other reproduction of this Agreement or any financing statement shall be
sufficient as a financing statement.
(d) It is the express intent of each of the Sellers and the
Purchaser that the transactions contemplated hereby shall be a purchase by the
Purchaser and a sale by the applicable Seller of Receivables and any conveyance
of Receivables by such Seller to the Purchaser pursuant to this Agreement be
construed as a sale of such Receivables by such Seller to the Purchaser.
Further, it is not the intention of each of the Sellers and the Purchaser that
such conveyance be deemed a grant of a security interest in any Receivables by
the applicable Seller to the Purchaser to secure a debt or other obligation of
such Seller. However, in case that, notwithstanding the intent of the parties,
any Receivables conveyed hereunder are construed to constitute property of the
applicable Seller, then (i) this Agreement also shall be deemed to be, and
hereby is, a security agreement within the meaning of the Relevant UCC; and (ii)
the conveyance by such Seller provided for in this Agreement shall be deemed to
be, and such Seller hereby grants to the Purchaser, a security interest in, to
and under all of such Seller's right, title and interest in, to and under all
Receivables conveyed by such Seller to the Purchaser, to secure the rights of
the Purchaser set forth in this Agreement or as may be determined in connection
therewith by applicable law. Each of the Sellers and the Purchaser shall, to the
extent consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in, and
not a sale of, Receivables, such security interest would be deemed to be a
perfected security interest in favor of the Purchaser under applicable law and
will be maintained as such throughout the term of this Agreement.
ARTICLE III.
CONSIDERATION AND PAYMENT; RECEIVABLES
Section 3.1. PURCHASE PRICE.
(a) The purchase price for any Receivable and related property
conveyed, transferred and assigned to the Purchaser by the applicable Seller
under this Agreement shall be a dollar amount equal to the product of (i) the
aggregate outstanding balance of the Receivables sold pursuant to such
conveyance, and (ii) the Purchase Percentage at such time (the "PURCHASE
PRICE").
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Section 3.2. PAYMENT OF PURCHASE PRICE.
(a) The Purchase Price for any Receivables and related
property conveyed hereunder shall be paid in the following manner: (i) by
payment of cash in immediately available funds, or (ii) by means of an advance
under the Subordinated Note (each such advance and any other advance under the
Subordinated Note, an "ADVANCE") or (iii) any combination of the foregoing. All
Advances made by the applicable Seller to Purchaser shall be evidenced by a
single subordinated note, duly executed on behalf of Purchaser, in substantially
the form of Exhibit A annexed hereto, delivered and payable to each such Seller
(the "SUBORDINATED NOTE"). Each of the Sellers is hereby authorized by the
Purchaser to endorse on the applicable schedule attached to the Subordinated
Note (or a continuation of such schedule attached thereto and made a part
thereof) an appropriate notation evidencing the date and amount of each Advance,
as well as the date and amount of each payment with respect thereto; PROVIDED,
HOWEVER, that the failure of any Person to make such a notation shall not affect
any obligations of Purchaser thereunder. Any such notation shall be conclusive
and binding as to the date and amount of such Advance, or payment of principal
or interest thereon, absent manifest error.
(b) The terms and conditions of the Subordinated Note and all
Advances thereunder shall be as follows:
(i) REPAYMENT OF ADVANCES. Advances shall be repaid
on such dates as mutually agreed to by Purchaser and the
applicable Seller. All amounts paid by the Purchaser with
respect to the Advances shall be allocated first to the
repayment of accrued interest until all such interest is paid,
and then to the outstanding principal amount of the Advances.
Subject to the provisions of this Agreement, the Purchaser may
borrow, repay and reborrow Advances on and after the date
hereof and prior to the termination of this Agreement, subject
to the terms, provisions and limitations set forth herein.
(ii) INTEREST. The Subordinated Note shall bear
interest from its date on the outstanding principal balance
thereof at a rate per annum equal to then Eurodollar Rate.
Interest on each Advance shall be computed based on the number
of days elapsed in a year of 360 days.
(iii) SUBORDINATION. The Subordinated Note shall be
fully subordinated to any rights of the Company, the Bank
Investors and their permitted assigns pursuant to the Transfer
Agreement, and shall not evidence any rights in the
Receivables.
(iv) OFFSETS, ETC. The Purchaser may offset any
amount due and owing by the applicable Seller against any
amount due and owing by Purchaser to such Seller under the
terms of the Subordinated Note.
Section 3.3. MONTHLY REPORT. Prior to the fifteenth (15th) Business Day
of each fiscal month, each of the Sellers shall prepare or cause to be prepared
and forward to the Purchaser (i) an Investor Report as of the end of the last
day of the immediately preceding fiscal month, (ii) if
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requested by the Purchaser, a listing by Obligor of all Receivables of the
applicable Seller together with an aging of such Receivables and (iii) such
other information pertaining to the Receivables or the transactions hereunder
as the Purchaser may reasonably request.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1. SELLERS REPRESENTATIONS AND WARRANTIES. On the Closing
Date and on each Purchase Date, each Seller represents and warrants to the
Purchaser that:
(a) CORPORATE EXISTENCE AND POWER. Each of the Sellers is a
corporation duly incorporated, validly existing and in good standing under the
laws of the state of its incorporation and has all corporate power and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business in each jurisdiction in which its business is now
conducted and each such Seller is duly qualified to do business in, and is in
good standing in, every other jurisdiction in which the nature of its business
requires it to be so qualified, except where the failure to have such items or
to be so qualified or in good standing would not have a material adverse effect
on the ability of such Seller to perform its obligations hereunder.
(b) CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION.
The execution, delivery and performance by each of the Sellers of this Agreement
is within its corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
Official Body or official thereof (except as contemplated hereby, by the
Receivables Purchase Agreement or by the Transfer Agreement), and do not
contravene, or constitute a default under, any provision of applicable law, rule
or regulation or of the certificate of incorporation of such Seller or of any
agreement, judgment, injunction, order, writ, decree or other instrument binding
upon the Seller or result in the creation or imposition of any Adverse Claim on
the assets of any Seller except where the same would not constitute a Material
Adverse Effect.
(c) BINDING EFFECT. This Agreement has been duly executed and
delivered and constitutes the legal, valid and binding obligation of each of the
Sellers, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws affecting
the rights of creditors generally.
(d) PERFECTION OF SALE. Immediately preceding each sale
hereunder, each of the Sellers shall be the legal and beneficial owner of all of
the Receivables and the Related Security and Collections to be sold hereunder,
free and clear of all Adverse Claims. On or prior to each sale hereunder, all
financing statements and other documents required to be recorded or filed under
the UCC in order to perfect and protect the interest of the Purchaser in the
Receivables against all creditors of and purchasers from the applicable Seller
will have been duly filed in each filing office necessary for such purpose and
all filing fees and taxes, if any, payable in connection with such filings shall
have been paid in full.
(e) ACCURACY OF INFORMATION. All information heretofore
furnished by any Seller (including without limitation, the Investor Reports, any
reports delivered pursuant to
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Section 2.10 of the Transfer Agreement and the Sellers' financial statements)
for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by each
Seller to the Purchaser or to any party pursuant to the Transfer Agreement
will be complete and accurate in every material respect, and the applicable
Seller has not omitted to disclose any information as of such date which is
material to the transaction on the date such information is stated or
certified, unless corrected by such Seller promptly after becoming aware of
such inaccuracy.
(f) TAX STATUS. Each of the Sellers has filed all material tax
returns (federal, state and local) required to be filed and has paid or made
adequate provision for the payment of all taxes and assessments due pursuant to
such returns or pursuant to any assessment received in respect thereof, and
other governmental charges payable by it.
(g) ACTION, SUITS. There are no actions, suits or proceedings
pending, or to the knowledge of any Seller threatened, against or affecting such
Seller or its respective properties, in or before any court, arbitrator or other
body which could reasonably be expected to have a material adverse effect on the
ability of the Seller to perform its obligations hereunder; each of the Sellers
is not in violation of any material order of any court, arbitrator or Official
Body.
(h) USE OF PROCEEDS. No proceeds of any sale hereunder will be
used by any Seller to acquire any security in any transaction which is subject
to Section 12 of the Securities Exchange Act of 1934, as amended or for any
purpose that violates any applicable law, rule or regulation, including
Regulation U of the Federal Reserve Board.
(i) PLACE OF BUSINESS. The principal place of business and
chief executive office (as such terms are defined in the UCC) of each of the
Sellers are located at the address of the Seller indicated in Section 9.3 hereof
and the offices where each Seller keeps all its Records relating to the
Receivables, are located at the address(es) described on Exhibit B annexed
hereto or such other locations notified to the Purchaser in accordance with
Section 5.1 hereof in jurisdictions where all action required by Section 2.1
hereof has been taken and completed.
(j) GOOD TITLE. Upon each sale, the Purchaser shall acquire a
valid ownership interest in each Receivable that exists on the date of such sale
and in the Related Security and Collections with respect thereto free and clear
of any Adverse Claim.
(k) AMOUNT OF RECEIVABLES. As of May 31, 1999, the aggregate
outstanding balance of the Receivables of the Sellers was $207,588,629, and the
Net Receivable Balance was $132,323,430.
(l) LOCK-BOX ACCOUNTS. The names and addresses of all the
Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at
such Lock-Box Banks, are specified in Exhibit C to the Transfer Agreement (or at
such other Lock-Box Banks and/or with such other Lock-Box Accounts as have been
notified to the Servicer and for which Lock-Box Agreements will be executed and
delivered to the Servicer within 60 days thereof). All Obligors have been
instructed to make payment to a Lock-Box Account and only Collections are
deposited
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into the Lock-Box Accounts unless any non-Collections are removed within two
(2) Business Days.
(m) BULK SALES. No transaction contemplated hereby requires
compliance with any bulk sales act or similar law.
(n) PREFERENCE; VOIDABILITY. The Purchaser has given
reasonably equivalent value to the applicable Seller in consideration for the
transfer to the Purchaser of the Receivables and Related Security by the
applicable Seller, and each such transfer has not been made for or on account of
an antecedent debt owed by the applicable Seller to the Purchaser.
Section 4.2. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES BY THE
APPLICABLE SELLER; NOTICE OF BREACH. On each date that Receivables are conveyed
hereunder by any Seller by accepting the proceeds of such conveyance, such
Seller shall be deemed to have certified that all representations and warranties
described in Section 4.1 are true and correct on and as of such day as though
made on and as of such day. The representations and warranties set forth in
Section 4.1 shall survive the conveyance of Receivables to the Purchaser, and
termination of the rights and obligations of the Purchaser and the applicable
Seller under this Agreement. Upon discovery by the Purchaser or the applicable
Seller of a breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
within three Business Days of such discovery.
ARTICLE V.
COVENANTS OF THE SELLER
Section 5.1. AFFIRMATIVE COVENANTS OF THE SELLER. At all times from the
date hereof to the Purchase Termination Date:
(a) CONDUCT OF BUSINESS. Each of the Sellers will do all
things necessary to remain duly incorporated, validly existing and in good
standing as a domestic corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted except where the failure to do so would not have
a material adverse effect on the ability of the applicable Seller to perform
their respective obligations hereunder.
(b) COMPLIANCE WITH LAWS. Each of the Sellers will comply with
all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it or its respective properties may be subject, except where the
failure to do so would not have a material adverse effect on the ability of such
Seller to perform its respective obligations hereunder.
(c) FURNISHING OF INFORMATION AND INSPECTION OF RECORDS. Each
of the Sellers will furnish to the Purchaser from time to time such information
with respect to the Receivables as the Purchaser may reasonably request,
including, without limitation, listings identifying the Obligor and the
outstanding balance for each Receivable. Each of the Sellers will at any time
and from time to time during regular business hours permit, upon reasonable
notice, the Purchaser, or its agents or representatives, (i) to examine and make
copies of and take abstracts from all
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Records and (ii) to visit the offices and properties of the applicable
Seller, for the purpose of examining such Records, and to discuss matters
relating to Receivables or the applicable Seller's performance under this
Agreement with any of the officers, directors, employees or independent
public accountants of the applicable Seller having knowledge of such matters.
(d) OFFICES, RECORDS AND BOOKS OF ACCOUNT. Each of the Sellers
will (i) keep its principal place of business and chief executive office (as
such terms or similar terms are used in the UCC) and the office where it keeps
its records concerning the Receivables at the addresses set forth in Section 9.3
hereof or at any other locations in jurisdictions where all actions reasonably
requested by the Purchaser to protect and perfect the interest of the Purchaser
in the Receivables and the Related Collateral have been taken and completed and
(ii) shall provide the Purchaser with at least 30 days' written notice before
making any change in its name or making any other change in its identity or
corporate structure that could render any UCC financing statement filed in
connection herewith or with the Transfer Agreement seriously misleading as such
term (or similar term) is used in the Relevant UCC; each notice to the Purchaser
pursuant to this sentence shall set forth the applicable change and the
effective date thereof. Each of the Sellers will maintain and implement (or
cause to be maintained and implemented) administrative and operating procedures
(including, without limitation, an ability to recreate records evidencing
Receivables in the event of the destruction of the originals thereof), and keep
and maintain (or cause to be maintained and implemented), all documents, books,
records and other information reasonably necessary or advisable for the
collection of all Receivables (including, without limitation, records adequate
to permit the daily identification of each new Receivable and all Collections of
and adjustments to each existing Receivable in accordance with its Credit and
Collection Policy). Each of the Sellers will give notice to the Purchaser of any
material change in the administrative and operating procedures of the applicable
Seller referred to in the previous sentence.
(e) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS.
Each of the Sellers will timely and fully perform and comply with all material
provisions, covenants and other promises required to be observed by the
applicable Seller under the Contracts related to the Receivables.
(f) CREDIT AND COLLECTION POLICIES. Each of the Sellers will
comply in all material respects with the relevant Credit and Collection Policy
in regard to each Receivable and the related Contract.
(g) COLLECTIONS. Each of the Sellers will instruct all
Obligors, or cause all Obligors to be instructed, to cause all Collections to be
deposited directly to a Lock-Box Account.
(h) COLLECTIONS RECEIVED. Each of the Sellers will hold in
trust, and deposit, immediately, but in any event not later than two (2)
Business Days of its receipt thereof, to a Lock-Box Account all Collections
received from time to time by the Seller; provided that the applicable Seller
may initially deposit checks consisting of Collections which it receives into
its operating account if such operating account is swept daily or within two (2)
Business Days such
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Collections are transferred to a Lock-Box Account and the aggregate amount of
such Collections in all such operating accounts does not exceed at any one
time $10,000,000.
(i) SALE TREATMENT. Each of the Sellers will treat this
conveyance for all purposes as a sale and to the extent any such reporting is
required, will report the transactions contemplated by this Agreement on all
relevant books, records, financial statements and other applicable documents as
a sale of Receivables to the Purchaser.
(j) YEAR 2000 COMPLIANCE. Each of the Sellers will promptly
notify the Purchaser in the event the Seller discovers or determines that any
Receivables System (including those of its suppliers and vendors) (i) that is
necessary for the origination, collection, management, or servicing of the
Receivables will not be Year 2000 Compliant on or before September 30, 1999 and
thereafter, or (ii) that is otherwise material to its business and operations
will not be Year 2000 Compliant on a timely basis, except to the extent that, in
the case of (ii) above, such failure could not reasonably be expected (a) to
have a Material Adverse Effect, or (b) to result in a Purchase Termination Date.
(k) OWNERSHIP INTEREST, ETC. Each of the Sellers will, at its
expense, take all action necessary or desirable to establish and maintain a
valid and enforceable ownership interest in the Receivables and the Related
Security, free and clear of any Adverse Claim, in favor of the Purchaser, KCH or
the Agent, as applicable, including taking such action to perfect, protect or
more fully evidence the interest of the Purchaser, as the Purchaser may
reasonably request.
Section 5.2. NEGATIVE COVENANTS OF THE SELLER. At all times from the
date hereof to the Purchase Termination Date:
(a) NO SALES, LIENS, ETC. Except as otherwise provided herein,
in the Receivables Purchase Agreement or in the Transfer Agreement, each of the
Sellers will not sell, assign (by operation of law or otherwise) or otherwise
dispose of, or create or suffer to exist any Adverse Claim upon (or the filing
of any financing statement) or with respect to (x) any of the Receivables sold
hereunder and the Related Security, or (y) any account which concentrates in a
Lock-Box Bank to which the Collections of Receivables sold hereunder and the
Related Security are sent, or assign any right to receive income in respect
thereof.
(b) NO EXTENSION OR AMENDMENT OF RECEIVABLES. Each of the
Sellers will not extend, amend or otherwise modify the terms of any Receivable,
or amend, modify or waive terms or conditions of Contract related thereto which
extension, amendment or modification would materially adversely affect the
collectibility thereof.
(c) NO CHANGE IN CREDIT AND COLLECTION POLICY. Each of the
Sellers will not make any change in its Credit and Collection Policy, which
change would, in either case, impair the collectibility of any material portion
of the Receivables or otherwise have a material adverse effect on the ability of
the applicable Seller to perform its obligations hereunder.
(d) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Each of the
Sellers will not add or terminate any bank as a Lock-Box Bank or any account as
a Lock-Box Account to or
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from those listed in Exhibit C to the Transfer Agreement or make any change
in its instructions to Obligors regarding payments to be made to any Lock-Box
Account, unless (i) such instructions are to deposit such payments to another
existing Lock-Box Account or (ii) the Agent shall have received written
notice of such addition, termination or change at least 30 days prior thereto
and the Agent shall have received a Lock-Box Agreement executed by each new
Lock-Box Bank or an existing Lock-Box Bank with respect to each new Lock-Box
Account, as applicable.
(e) DEPOSITS TO LOCK-BOX ACCOUNTS. Each of the Sellers will
not deposit or otherwise credit, or cause or permit to be so deposited or
credited, to any Lock-Box Account cash or cash proceeds other than Collections
of Receivables unless such other cash and proceeds are removed from such
Lock-Box Account within two (2) Business Days.
(f) CHANGE OF NAME, ETC. Each of the Sellers will not change
its name, identity or structure or the location of its chief executive office,
unless at least ten (10) days prior to the effective date of any such change the
applicable Seller delivers to the Purchaser (i) such documents, instruments or
agreements, executed by the applicable Seller as are necessary to reflect such
change and to continue the perfection of the Purchaser's ownership interests in
the Affected Assets and (ii) new or revised Lock-Box Agreements executed by the
Lock-Box Banks which reflect such change and enable the Agent to continue to
exercise its rights contained in Section 2.7 of the Transfer Agreement.
(g) AMENDMENTS TO LOCK-BOX AGREEMENTS. Each of the Sellers
will not amend, modify, or supplement any Lock-Box Agreement once effective or
waive any provision thereof, in each case except with the prior written consent
of the Agent; nor shall the Seller take any other action under any Lock-Box
Agreement that could have a material adverse effect on the Agent, the Company or
any Bank Investor or which is inconsistent with the terms of the Transfer
Agreement.
ARTICLE VI.
REPURCHASE OBLIGATION; DEEMED COLLECTIONS; INDEMNITIES
Section 6.1. MANDATORY REPURCHASE. (a)If on any day the outstanding
balance of a Receivable conveyed hereunder and included at any time as an
Eligible Receivable on an Investor Report is either (x) reduced as a result of
any defective, rejected or returned merchandise or services, any discount,
credit, dispute, warranty claim, repossessed or returned goods, charge-back,
allowance, any billing adjustment, similar dilutive factor or other similar
adjustment or (y) reduced or canceled as a result of a setoff or offset in
respect of any claim by any Person against the applicable Seller (whether such
claim arises out of the same or a related transaction or an unrelated
transaction), the applicable Seller shall be deemed to have received on such day
a Collection of such Receivable in the amount of such reduction or cancellation
and such Seller shall pay to the Purchaser an amount equal to such reduction or
cancellation.
(b) If on any day any representation or warranty of either
Seller in this Agreement was or becomes untrue with respect to a Receivable
(whether on or after the date of any transfer of such Receivable to the
Purchaser), such Seller shall be deemed to have received on
-13-
such day a Collection of such Receivable in full and shall on such day pay to
the Purchaser an amount equal to the outstanding balance of such Receivable.
(c) Any payment by an Obligor in respect of any indebtedness,
obligation or liability owed by it to the applicable Seller shall, except as
otherwise specified by such Obligor or otherwise required by contract or law be
applied as a Collection of any Receivable of such Obligor included in the
Receivables transferred hereunder (starting with the oldest such Receivable) to
the extent of any amounts then due and payable thereunder before being applied
to any other receivable or other indebtedness of such Obligor to such Seller.
Section 6.2. INDEMNIFICATION. Each of the Sellers agrees to indemnify,
defend and hold the Purchaser harmless from and against any and all losses,
liabilities, damages, judgments, claims, deficiencies, or expenses (including
interest, penalties, reasonable attorneys' fees and amounts paid in settlement)
("Indemnified Amounts") to which the Purchaser or any assignee thereof may
become subject insofar as any such Indemnified Amount arises out of or is based
upon a breach by the applicable Seller of its representations, warranties and
covenants contained herein, or any information certified in any schedule or
certificate delivered by such Seller hereunder, being untrue in any material
respect at any time; excluding, however, Indemnified Amounts resulting from (i)
recourse for uncollectible Receivables and Related Security or (ii) the gross
negligence or willful misconduct on the part of Purchaser or such assignee. The
obligations of each of the Sellers under this Section 6.2 shall be considered to
have been relied upon by the Purchaser, the Company and the Bank Investors and
shall survive the execution, delivery, performance and termination of this
Agreement, regardless of any investigation made by the Purchaser, the Company,
any Bank Investor or on behalf of any of them.
Section 6.3. NO RECOURSE. Except as otherwise provided in this Article
VI, the purchase and sale of Receivables under this Agreement shall be without
recourse to the applicable Seller.
ARTICLE VII.
CONDITIONS PRECEDENT
Section 7.1. CONDITIONS TO THE PURCHASER'S OBLIGATIONS REGARDING
RECEIVABLES. The obligations of the Purchaser to purchase any Receivables on any
sale date (except clause (e), which shall apply only on the initial sale date)
shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of each of the Sellers
contained in this Agreement shall be true and correct in all material respects
on each sale date with the same effect as though such representations and
warranties had been made on such date;
(b) All information concerning such Receivables provided to
the Purchaser shall be true and correct in all material respects as of any sale
date;
(c) Each of the Sellers shall have substantially performed all
other obligations required to be performed by the provisions of this Agreement;
-14-
(d) Each of the Sellers shall have delivered or filed or
caused to be delivered or filed the financing statement(s) required to be filed
pursuant to Section 2.1(b); and
(e) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Purchaser, and the Purchaser shall
have received from each of the Sellers copies of all documents (including,
without limitation, records of corporate proceedings) relevant to the
transactions herein contemplated as the Purchaser may reasonably have requested.
ARTICLE VIII.
TERM AND TERMINATION
Section 8.1. TERM. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue in full force and effect until
the date following the earlier of (i) the date designated by the Purchaser or
the applicable Seller as the termination date at any time following sixty (60)
day's written notice to the other parties (with a copy thereof to the Agent),
(ii) the date on which the Termination Date occurs or is declared pursuant to
Section 7.2 of the Transfer Agreement, (iii) the day on which the Investment
Termination Date shall occur under the Transfer Agreement unless the Transferred
Interest shall have been assigned (or concurrently is so assigned) to the Bank
Investors under Section 9.9 of the Transfer Agreement, (iv) upon the occurrence
of an Event of Bankruptcy with respect to either the Purchaser or the applicable
Seller, or (v) the date on which either the Purchaser or the applicable Seller
becomes unable for any reason to purchase or re-purchase any Receivable in
accordance with the provisions of this Agreement or defaults on its material
obligations hereunder, which inability to purchase or default continues
unremedied for more than thirty (30) days after written notice by the other
party hereto (any such date being a "PURCHASE TERMINATION DATE"); PROVIDED,
HOWEVER, that the occurrence of the Purchase Termination Date pursuant to this
Section 8.1 hereof shall not discharge any Person from any obligations incurred
prior to the Purchase Termination Date, including, without limitation, any
obligations to make any payments with respect to the interest of the Purchaser
in any Receivable sold prior to the Purchase Termination Date.
Section 8.2. EFFECT OF PURCHASE TERMINATION DATE. Following the
occurrence of the Purchase Termination Date pursuant to Section 8.1 hereof, the
Sellers shall not sell, and the Purchaser shall not purchase, any Receivables.
No termination or rejection or failure to assume the executory obligations of
this Agreement in any Event of Bankruptcy with respect to the applicable Seller
or the Purchaser shall be deemed to impair or affect the obligations pertaining
to any executed sale or executed obligations, including, without limitation,
pre-termination breaches of representations and warranties by such Seller or the
Purchaser. Without limiting the foregoing, prior to the Purchase Termination
Date, the failure of the applicable Seller to deliver computer records of any
Receivables or any reports regarding any Receivables shall not render such
transfer or obligation executory, nor shall the continued duties of the parties
pursuant to Article V or Section 9.1 of this Agreement render an executed sale
executory.
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ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.1. AMENDMENT. This Agreement and the rights and obligations
of the parties hereunder may not be changed orally, but only by an instrument in
writing signed by the Purchaser and the Sellers and consented to in writing by
the Agent. Any reconveyance executed in accordance with the provisions hereof
shall not be considered amendments to this Agreement.
Section 9.2. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) The parties hereto hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in The City of New York for
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. Each party hereto hereby irrevocably
waives, to the fullest extent it may effectively do so, 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. Nothing in this Section 9.2
shall affect the right of the Purchaser to bring any other action or proceeding
against the applicable Seller or its property in the courts of other
jurisdictions.
Section 9.3. NOTICES. Except as provided below, all communications and
notices provided for hereunder shall be in writing (including telecopy or
electronic facsimile transmission or similar writing) and shall be given to the
other party at its address or telecopy number set forth below or at such other
address or telecopy number as such party may hereafter specify for the purposes
of notice to such party. Each such notice or other communication shall be
effective (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section 9.3 and confirmation is received, (ii)
if given by mail 3 Business Days following such posting, postage prepaid, U.S.
certified or registered, (iii) if given by overnight courier, one (1) Business
Day after deposit thereof with a national overnight courier service, or (iv) if
given by any other means, when received at the address specified in this Section
9.3.
(a) in the case of the Purchaser:
UNOVA, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000-0000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
NationsBank, N.A.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
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Asset Backed Securitization Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) in the case of the Sellers:
UNOVA, Industrial Automation Systems, Inc.
0000 Xxxx Xxxx Xxxx Xxxx
Xxxxxx, XX 00000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Intermec Technologies Corp.
0000 00xx Xxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
Section 9.4. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 9.5. ASSIGNMENT. This Agreement may not be assigned by the
parties hereto, except that the Purchaser may assign its rights hereunder
pursuant to the Transfer Agreement to the Agent, for the benefit of the Company
and the Bank Investors, and that the Company may assign any or all of its rights
to any Liquidity Provider or to a Conduit Assignee.
Section 9.6. FURTHER ASSURANCES. The Purchaser and each of the Sellers
agree to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the other party
more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or continuation statements
or equivalent documents relating to the Receivables conveyed hereunder for
filing under the provisions of the Relevant UCC or other laws of any applicable
jurisdiction.
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Section 9.7. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Purchaser or the Sellers, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privilege provided by law.
Section 9.8. COUNTERPARTS. This Agreement may be executed in two or
more counterparts including telecopy transmission thereof (and by different
parties on separate counterparts), each of which shall be an original, but all
of which together shall constitute one and the same instrument.
Section 9.9. BINDING EFFECT; THIRD-PARTY BENEFICIARIES. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. The Agent, on behalf of the Company
and its assignees and the Bank Investors, and any Liquidity Provider is intended
by the parties hereto to be a third-party beneficiary of this Agreement.
Section 9.10. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 9.11. HEADINGS. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 9.12. EXHIBITS. The schedules and exhibits referred to herein
shall constitute a part of this Agreement and are incorporated into this
Agreement for all purposes.
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IN WITNESS WHEREOF, the Purchaser and the Seller each have
caused this Originator Receivables Purchase Agreement to be duly executed by
their respective officers as of the day and year first above written.
UNOVA INDUSTRIAL AUTOMATION
SYSTEMS, INC., as Seller
By: /s/ Xxxxx X. Xxxx, Xx.
----------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Treasurer
INTERMEC TECHNOLOGIES
CORPORATION, as Seller
By: /s/ Xxxxx X. Xxxx, Xx.
----------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Treasurer
UNOVA, INC. as Purchaser
By: /s/ Xxxxx X. Xxxx, Xx.
----------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Treasurer
S-1
EXHIBIT A
FORM OF SUBORDINATED NOTE
$________________ June __, 1999
FOR VALUE RECEIVED, the undersigned, UNOVA, INC., a Delaware
corporation (the "MAKER"), hereby promises to pay to the order of [UNOVA
Industrial Automation Systems, Inc.] [Intermec Technologies Corporation] (the
"PAYEE"), on the dates and as provided for in the Originator Receivables
Purchase Agreement dated as of the date hereof between the Maker and the Payee
(as such agreement may from time to time be amended, supplemented or otherwise
modified and in effect, the "ORIGINATOR RECEIVABLES PURCHASE AGREEMENT"), the
lesser of the principal sum of ________________Dollars ($____________) or the
aggregate unpaid principal amount of all Advances to the Maker from the Payee
pursuant to the terms of the Originator Receivables Purchase Agreement, in
lawful money of the United States of America in immediately available funds, and
to pay interest from the date thereof on the principal amount hereof from time
to time outstanding, in like funds, at the rate per annum set forth in the
Originator Receivables Purchase Agreement and shall be payable on the dates and
in the amounts set forth in the Originator Receivables Purchase Agreement.
The Maker hereby waives diligence, presentment, demand,
protest and notice of any kind whatsoever. The non-exercise by the holder hereof
of any of its rights hereunder in any particular instance shall not constitute a
waiver thereof in that or any subsequent instance.
All borrowings evidenced by this Subordinated Note and all
payments and prepayments of the principal hereof and interest hereon and the
respective dates thereof shall be endorsed by the holder hereof on the schedule
attached hereto and made a part hereof, or on a continuation thereof which shall
be attached hereto and made a part hereof, or otherwise recorded by such holder
in its internal records; PROVIDED, HOWEVER, that the failure of the holder
hereof to make such a notation or any error in such a notation shall not in any
manner affect the obligation of the Maker to make payments of principal and
interest in accordance with the terms of this Subordinated Note and the
Originator Receivables Purchase Agreement.
The Maker shall have the right to prepay and, subject to the
limitations set forth in the Originator Receivables Purchase Agreement, reborrow
Advances made to it without penalty or premium.
This Subordinated Note is the Subordinated Note referred to in
the Originator Receivables Purchase Agreement, which, among other things,
contains provisions for the subordination of this Subordinated Note to the
rights of certain parties under the Transfer Agreement, all upon the terms and
conditions therein specified.
S-1
This Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
UNOVA, INC.
By:
------------------------------
Name:
Title:
S-2
Advances and Payments
Amount of Payments Unpaid Principal Name of Person
Advance Principal/Interest Balance of Note Making Notation
---------- ------------------ ---------------- ---------------
S-3
EXHIBIT B
Originator Subsidiaries' Principal Places of Business and
Location of Records
1. UNOVA Industrial Automation Systems, Inc.
0000 Xxxx Xxxx Xxxx Xxxx
Xxxxxx, XX 00000 XXX
Phone: (000) 000-0000
Fax: (000) 000-0000
Location of Records: Warren, MI; Cincinatti, OH
a) Lamb Technicon Machining Systems
0000 X. Xxxx Xxxx Xxxx
Xxxxxx, XX 00000-0000
b) Lamb Technicon Body and Assembly Systems
0000 X. Xxxx Xxxx Xxxx
Xxxxxx, XX 00000-0000
c) Cincinnati Machine
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
2. Intermec Technologies Corporation
0000 00xx Xxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Phone; (000) 000-0000
Fax: (000) 000-0000
Location of Records: Everett, WA; Cedar Rapids, IA; Fairfield, OH
In Cedar Rapids, IA
000 Xxxxxx Xxxxxx X.X.
Xxxxx Xxxxxx, XX 00000
In Cincinnati, OH
0000 XxXxxxx Xxxxx
Xxxxxxxxx, XX 00000
S-4
EXHIBIT C
Form of
CERTIFICATE OF SALE
Reference is made to the Originator Receivables Purchase
Agreement dated as of June __, 1999 (such agreement as amended, modified or
supplemented from time to time, the "AGREEMENT") among [Seller,] as seller (in
such capacity, the "Seller"), UNOVA, Inc., a Delaware corporation, as purchaser
(in such capacity, the "PURCHASER"). Terms defined in the Agreement are used
herein as therein defined.
The Seller hereby sells, conveys, transfers and assigns to the
Purchaser all of its right, interest and title in and to the Receivables and
Related Security, Collections and proceeds relating thereto existing as of the
date hereof and on each Purchase Date.
This Certificate of Sale is made without recourse except as
otherwise provided in the Agreement.
This Certificate of Sale shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect to
the conflicts of law provisions thereof.
IN WITNESS WHEREOF, the undersigned has caused this
Certificate of Sale to be duly executed and delivered by its duly authorized
officer as of the date first above written.
[Seller]
By:
--------------------------------------
Name:
Title:
C-1
