Exhibit No. 2.1
AGREEMENT RESPECTING A LIMITED LIABILITY COMPANY
This Agreement is made as of this 1st day of December 1998, by and
between Snap-on Incorporated, a Delaware corporation with its principal office
located in Kenosha, Wisconsin ("Snap-on"), and Newcourt Financial USA Inc., a
corporation chartered under the laws of the State of Delaware with its main
offices located in Indianapolis, Indiana and Parsippany, New Jersey
("Newcourt"). For purposes of this Agreement, capitalized terms used herein,
unless otherwise defined herein, shall have the meaning ascribed to such terms
in the Definitional Supplement attached hereto as Exhibit A (the "Definitional
Supplement").
R E C I T A L S
WHEREAS, Snap-on seeks to arrange financing under identified credit
programs for Snap-on Customers;
WHEREAS, Snap-on seeks to form an alliance with another company
possessing funding capabilities and expertise in the area of systems management,
credit programs, design, licensing and leasing programs to maximize efficiencies
and create economies of scale necessary to maintain and expand credit programs
extended to Snap-on Customers;
WHEREAS, Newcourt is a company engaged in the business of designing and
implementing U.S. and foreign vendor financing programs and desires to provide
financing to Snap-on Customers;
WHEREAS, Snap-on and Newcourt each, directly or through a wholly-owned
subsidiary, desire to become members of a limited liability company which will
offer certain credit programs to Snap-on Customers and create new financing
facilities and programs to be offered to Snap-on Customers and increase
efficiency in the management and operation of financing programs;
NOW, THEREFORE, in consideration of these premises and the mutual
covenants set forth herein, the parties hereby agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF NEWCOURT
Newcourt represents and warrants to Snap-on as follows:
1.01. Trademarks and Processing Systems. Each Newcourt Entity is
the rightful owner of, or fully licensed and/or authorized to use, all right and
title to (a) the Newcourt tradename and Newcourt trademarks and service marks
and (b) the processing systems, technology, software and programs identified on
Schedule 1.01. Newcourt has delivered to Snap-on an accurate and complete copy
of each agreement governing or relating to the use of such systems by the
Newcourt Entities.
1.02. Organization. Schedule 1.02 sets forth a list of all
Newcourt Entities. Each Newcourt Entity is a corporation or other jural entity
as indicated validly organized and existing under the laws of the jurisdiction
of its organization and has due authority to conduct business in all
jurisdictions where it conducts business.
1.03. No Conflict. The execution and delivery of this Agreement
and the other Operative Documents by the Newcourt Entities and the consummation
of the transactions herein and therein contemplated do not violate or constitute
a breach or default under the organizational documents of any Newcourt Entity or
under the terms and conditions of any documents, agreements or other writings to
which any Newcourt Entity is a party, which violation, breach or default could
reasonably be expected to have a Material Adverse Effect on any Newcourt Entity.
1.04. Financial Statements. The consolidated balance sheets of
Newcourt and its consolidated Subsidiaries as at December 31, 1997, and the
related consolidated statements of cash flows and consolidated statements of
changes in financial position of Newcourt and its consolidated Subsidiaries for
the fiscal year then ended, certified by Ernst & Young, independent public
accountants, copies of which have been furnished to Snap-on, fairly present the
financial condition of Newcourt and its consolidated Subsidiaries as at such
date and the consolidated results of operations of Newcourt and its consolidated
Subsidiaries for the period ending with such date, all in accordance with
generally accepted accounting principles ("GAAP") used in Canada consistently
applied and since December 31, 1997, there has been no material adverse change
in any such condition or operations. The long-term senior unsecured debt of
Newcourt is rated investment grade or equivalent by at least one U.S. Rating
Agency and Newcourt has sufficient funding capacity, after meeting all other
financial commitments, to complete the purchase of the Finance Contracts from
the Company in the amounts set forth in the Annual Operating Plan.
1.05. Regulatory Authorities; Capabilities. Each Newcourt Entity
possesses all licenses and permits and other authorizations by Regulatory
Authorities necessary to the conduct of its respective business and to provide
to the Company and the Snap-on Entities the services anticipated under the
Operative Documents, except those the lack of which would not have Material
Adverse Effect on its respective business or its ability to provide such
services; provided, however, no representation or warranty is made regarding any
licenses, permits or authorization which may be necessary to originate any loans
under the Snap-on Dealer Credit Programs. No Newcourt Entity has received notice
from any Regulatory Authority indicating that such Regulatory Authority would
oppose or not grant or issue its Consent, if required, with respect to the
transactions contemplated by this Agreement and the other Operative Documents.
Each Newcourt Entity is licensed to operate in the jurisdictions listed next to
its name on Schedule 1.02. The indicated entities possess, in such
jurisdictions, access to capital markets and funding, and the capabilities to
perform such services as may be necessary to support the Snap-on Dealer Credit
Programs currently sponsored or managed by Newcourt in such jurisdiction.
1.06. No Filings Required. No action of, or filing with, or
Consent of, any Regulatory Authority or any other third party is required by any
Newcourt Entity to authorize,
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or is otherwise required in connection with, the execution, delivery and
performance by such Newcourt Entity of this Agreement or the other Operative
Documents.
1.07. Litigation. To the best of the knowledge of Newcourt, after
due inquiry by Xxxxx Xxxxxxxxxx, Newcourt's Assistant General Counsel -
Litigation, there is no litigation relating to any Newcourt Entity's business,
its respective funding capability or its other joint venture relationships that
is pending, or threatened, in or before any court, commission, arbitration
tribunal, or judicial, governmental or administrative department, body, agency,
administrator or official, grand jury or any other forum for the resolution of
grievances, against Newcourt or any Newcourt Entity which would reasonably be
required to be disclosed to Newcourt's auditors under GAAP as used in Canada in
connection with an audit of the consolidated financial statements of Newcourt
Credit Group Inc.
1.08. System Compliance.
(a) Each Newcourt Entity has conducted a review of its
computer systems and equipment containing embedded microchips to
determine whether they are Year 2000 Compliant (as defined below). Each
Newcourt Entity has plans in place to complete all system upgrades or
reprogramming necessary to make its computer systems and equipment
containing embedded microchips Year 2000 Compliant, and to complete the
testing thereof, by September 30, 1999, and is in the process of
communicating with vendors, suppliers and customers to identify any
potential year 2000 issues which may adversely affect any Newcourt
Entity. For purposes of the foregoing, "Year 2000 Compliant" shall mean
the ability of the system to provide all of the following functions:
(i) Handle date information before, during and after
midnight, December 31, 1999, including but not limited to
accepting date input, providing date output, and performing
calculations on dates or portions of dates; date
interpretation and manipulation must be correct for all valid
date values within the application domain;
(ii) Function accurately and without interruption
before, during and after January 1, 2000, without any change
in operations associated with the advent of the new century;
(iii) Respond to two-digit, year-date input in a way
that resolves the ambiguity as to century in a disclosed,
defined and predetermined manner; interfacing software must
make the same century assumption when processing two-digit
years;
(iv) Process 2000 as a leap year;
(v) Correctly process any date with a year specified
as "99" or 00" regardless of other subjective meanings
attached to those values; and
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(vi) Store and provide output of date information in
ways that are unambiguous as to century.
(b) The aggregate cost to the Newcourt Entities of such
reprogramming, system upgrades and testing, and the reasonably
foreseeable consequences of year 2000 and the conversion to the Euro on
January 1, 1999, to each Newcourt Entity (including, without
limitation, reprogramming errors and failure of others' systems or
equipment), will not result in a Material Adverse Effect on Newcourt
Credit Group Inc. on a consolidated basis. Except for such of the
reprogramming and upgrades referred to in the preceding sentence as may
be necessary, to the best of Newcourt's knowledge, the computer systems
and equipment of each Newcourt Entity are, and with ordinary course
upgrades and routine maintenance will continue through December 31,
2005, to be, sufficient to permit each Newcourt Entity to conduct its
business and to perform its obligations under any Operative Document to
which it is a party without a Material Adverse Effect on the Company.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF SNAP-ON
Snap-on represents and warrants to Newcourt as follows:
2.01. Trademarks. Snap-on and each of its Subsidiaries is the rightful
owner of, or fully licensed and/or authorized to use, all right and title to (a)
the Snap-on trademark, tradename and service marks and (b) all processing
systems, technology, know-how and software programs identified in Schedule 2.01
(the "Snap-on Systems"). Snap-on has delivered to Newcourt an accurate and
complete copy of each agreement governing or relating to the use of the Snap-on
Systems by the Snap-on Entities.
2.02. Organization. Each Snap-on Entity is a corporation validly
organized and existing under the laws of the State of its incorporation, with
due authority to conduct business in all jurisdictions where it conducts
business. As of the Closing Date, the Company will be a Delaware limited
liability company, duly formed and existing under the Act.
2.03 No Conflict. The execution and delivery of this Agreement and the
other Operative Documents by the Snap-on Entities and the consummation of the
transactions herein and therein contemplated do not violate or constitute a
breach or default under the organizational documents of any Snap-on Entity or
under the terms and conditions of any documents, agreements or other writings to
which a Snap-on Entity is a party, which violation, breach or default could
reasonably be expected to have a Material Adverse Effect on Snap-on on a
consolidated basis.
2.04. No Default. To the best of Snap-on's knowledge, the Company, as
of the Closing Date, is not, has not been and will not be by virtue of any past
or present action, omission to act, contract to which they are a party or any
occurrence or state of facts whatsoever, in violation in any material respect of
any applicable Law, Order or Permit, the
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violation of which would result in a Material Adverse Effect on the Company or
any Snap-on Entity.
2.05. Regulatory Authorities. Each Snap-on Entity possesses all
licenses and permits and other authorizations by Regulatory Authorities
necessary to the conduct of its business and to provide the services anticipated
to be provided by it under the Operative Documents except those licenses,
permits and authorizations the lack of which would not have a Material Adverse
Effect on its business or its ability to provide such services. No Snap-on
Entity has received notice from any Regulatory Authority indicating that such
Regulatory Authority would oppose or not grant or issue its Consent, if
required, with respect to the transactions contemplated by this Agreement and
the other Operative Documents. Except as set forth on Schedule 2.05(a), no
action of, or filing with, or Consent of, any Regulatory Authority or any other
third party is required by any Snap-on Entity to authorize, or is otherwise
required by any Snap-on Entity in connection with, the execution, delivery and
performance by such Snap-on Entity of this Agreement or the other Operative
Documents. Except as disclosed on Schedule 2.05(b), no action of, filing with or
Consent of any Regulatory Authority or any other third party is required by the
Company for the conduct of its Business or in connection with the execution,
delivery and performance by the Company of the Company Supplement or the
Operative Documents.
2.06. No Liens. As of the Closing Date, the Company will be the owner
of all right, title and interest in and to its Assets, free and clear of all
Liens of any nature whatsoever, and will have good and valid title to or a
leasehold interest in its Assets.
2.07. Financial Statements. The consolidated balance sheets of Snap-on
and its consolidated Subsidiaries as at January 3, 1998, and the related
consolidated statements of cash flows and consolidated statements of changes in
financial position of Snap-on and its consolidated Subsidiaries for the fiscal
year then ended, certified by Xxxxxx Xxxxxxxx LLP, independent public
accountants, copies of which have been furnished to Newcourt, fairly present the
consolidated financial condition of Snap-on and its consolidated Subsidiaries as
at such date and the consolidated results of the operations of Snap-on and its
consolidated Subsidiaries for the period ended on such date, all in accordance
with GAAP consistently applied, and since January 3, 1998, there has been no
material adverse change in any such condition or operations. To the best of the
knowledge of Snap-on, the books and records of SCC have been, and are being,
maintained in all material respects in accordance with applicable legal and
accounting requirements and reflect only actual transactions.
2.08. Litigation. Schedule 2.08 sets forth all material Litigation
relating to the Company or SCC that is pending, or to the knowledge of Snap-on,
threatened, in or before any court, commission, arbitration tribunal, or
judicial, governmental or administrative department, body, agency, administrator
or official, grand jury or any other or forum for the resolution of grievances,
against the Company or SCC.
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2.09. Contracts. Except as set forth in Schedule 2.09:
(a) The Company, as of the Closing Date, will not be party to
or bound by any material agreement, contract, commitment or
relationship, whether written or oral, with any other Snap-on Entity;
and
(b) With respect to the Business of the Company, as of the
Closing Date, there will be no contract, agreement or other arrangement
entitling any Person to any profits, revenues or cash flows of the
Company or requiring any payments or other distributions based on such
profits, revenues or cash flows.
2.10. Snap-on Disclaimer. Newcourt agrees and acknowledges that the
business of the Company will be significantly affected by changes in the volume
of financing contracts originated by other Snap-on Entities, or by changes in
interest rates and general economic conditions. Newcourt acknowledges that past
experience with respect to the generation, purchase, sale, and collection of
amounts due on Finance Contracts purchased and serviced by any Snap-on Entity
prior to the date hereof does not guarantee or even necessarily indicate the
level or profitability of the Company's business in the future. Newcourt
acknowledges that collections and loss experience may change, for better or for
worse, in the future. Newcourt acknowledges that it has been given complete
access to information concerning the information systems of SCC and the Company
and has had a complete opportunity to verify the status and condition of such
systems.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ALL PARTIES
3.01 All Parties. Newcourt represents and warrants for itself and each
of the Newcourt Entities, and Snap-on represents and warrants for itself and
each of the Snap-on Entities, that:
(a) It has the corporate power and authority to execute and
deliver this Agreement and any Operative Document to which it is a
party and to perform its obligations hereunder and thereunder. Such
execution, delivery, performance and consummation have been duly
authorized by all necessary corporate or limited liability company
action on its part. This Agreement has been duly executed and delivered
by its duly authorized officers, and constitutes its valid and legally
binding obligation enforceable against it in accordance with the terms
hereof, except as the same may be limited by (i) applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws from time
to time in effect affecting creditors' rights generally or (ii)
equitable principles of general application.
(b) It is not, and execution of this Agreement will not cause
it to be, in violation of any term of its charter, certificate of
incorporation or by-laws; or any agreement or instrument to which it is
a party, any Law, or any applicable Order, which violation could
reasonably be expected to have a Material Adverse Effect on its ability
to enter into, execute, deliver or perform its obligations under this
Agreement.
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3.02. Disclaimer of Warranties. OTHER THAN THOSE
REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE IN THIS AGREEMENT OR IN
THE OTHER OPERATIVE DOCUMENTS, NO PARTY HERETO MAKES ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND EXPRESS OR IMPLIED ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE OPERATIVE DOCUMENTS.
ARTICLE IV
FORMATION OF COMPANY AND RELATED MATTERS
4.01. Formation of Company. Following the execution of this Agreement
and prior to the Closing, Snap-on shall form, or cause to be formed, a Delaware
limited liability company (the "Company"). The purpose of the Company shall be
to engage in the business of providing financing under identified credit
programs, including the Snap-on Dealer Credit Programs, to Snap-on Customers in
the U.S. and other countries around the world, to manage such credit programs
(collectively, the "Business") and to engage in any such other legal purpose as
agreed to from time to time by the Company's Board of Directors. The initial
principal place of business of the Company shall be in or near Gurnee, Illinois
and the name of the Company shall be "Snap-on Credit LLC," or such other name as
Snap-on and Newcourt may mutually agree upon in writing. Initially, Snap-on
shall be the sole Member of the Company, owning a one hundred percent (100%)
Membership Interest in the Company. Prior to Newcourt making the Newcourt
Investment, the Company will have no rights under the Program Rights Agreement
between SCC and Snap-on, a copy of which is attached as Schedule 4.01(a) (the
"Program Rights Agreement"), or under the Trademark License Agreement between
SCC and Snap-on Technologies, Inc., a copy of which will be provided to Newcourt
prior to Closing (the "Snap-on Trademark License"). The Company shall otherwise
own, or possess the right to use in the Business, as of the Closing Date, all
material items of furniture, fixtures, software systems, and other material
Assets as may be necessary to commence the operation of the Business. Prior to
Newcourt making the Newcourt Investment (as defined in Section 4.02(a) below),
the Company shall have no indebtedness payable to or from any Snap-on Entity.
4.02. Newcourt Investment.
(a) Newcourt shall contribute to the Company as its capital
contribution, cash in an amount equal to the lesser of $1,000,000 or
the Net Asset Value of the Company on the Closing Date as provided in
Section 4.02(b)(i) below (the "Investment Amount"). In exchange
Newcourt shall receive from the Company a fifty percent (50%)
Membership Interest (the "Newcourt Investment"). The Newcourt
Investment shall be evidenced by a Subscription Agreement between the
Company and Newcourt.
(b) Newcourt shall make the Newcourt Investment as follows:
(i) At the Closing, Newcourt shall deliver to the
Company cash in the amount of the Investment Amount as shown
on the preliminary balance sheet of the Company as of the
Closing Date. The term Net Asset Value shall
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mean, as determined in accordance with GAAP, the dollar amount
by which the net book value of the assets of the Company
exceeds the net book value of the liabilities of the Company.
The preliminary balance sheet shall be prepared by the Company
and delivered to Newcourt and Snap-on not fewer than ten (10)
days prior to the scheduled Closing Date. The preliminary
balance sheet shall be prepared using GAAP principles
previously used by SCC from the books and records of the
Company and shall reflect the estimated assets and liabilities
of the Company as of the Closing Date immediately prior to the
Newcourt Investment. Prior to Closing, Snap-on and Newcourt
shall agree on the information set forth in the preliminary
balance sheet;
(ii) Not later than thirty (30) days following the
Closing, the Company shall prepare and deliver to Snap-on and
Newcourt a final closing balance sheet of the Company as of
the Closing Date immediately prior to the Newcourt Investment
prepared in the same manner and using the same principles and
policies used in the preparation of the preliminary balance
sheet from the books and records of the Company. The Company
shall deliver to Snap-on and Newcourt such additional
information as either may reasonably request. To the extent
that the Net Asset Value of the Company as of the Closing Date
reflected on the final closing balance sheet is greater than
or less than the Net Asset Value of the Company as of the
Closing Date as reflected on the preliminary balance sheet,
Newcourt shall contribute additional cash to the Company to
make up any deficiency in its Closing Date cash contribution
or the Company shall reimburse Newcourt cash to the extent the
Closing Date cash contribution by Newcourt exceeded the Net
Asset Value as reflected on the final closing balance sheet;
provided, however, that in no event shall the aggregate amount
contributed by Newcourt pursuant to this Section 4.02(b)
exceed $1,000,000; and
(iii) In the event Newcourt and Snap-on are not able
to reach agreement regarding the Net Asset Value of the
Company as reflected on the final closing balance sheet,
either party may elect to have such dispute or disagreement
resolved by Xxxxxx Xxxxxxxx whose calculation of the Net Asset
Value of the Company on the Closing Date as provided herein
shall be final. The fees and expenses for the services of
Xxxxxx Xxxxxxxx shall be shared equally by Snap-on and
Newcourt.
(c) Immediately following the consummation of the Newcourt
Investment, (i) Snap-on shall first transfer its entire Membership
Interest in the Company to Snap-on Capital Corp., a newly formed
wholly-owned subsidiary of Snap-on ("Newco") and (ii) Newco and
Newcourt shall then execute, deliver and enter into an Operating
Agreement substantially in the form attached hereto as Exhibit 4.02(c)
(the "Operating Agreement").
(d) The Company shall, at the Closing, execute a Company
Supplement to this Agreement in form acceptable to Snap-on and Newcourt
(the "Company
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Supplement") evidencing the Company's approval of this Agreement and
the Company's contractual obligation to abide by the terms of this
Agreement and the Operative Documents.
4.03. Time and Place of Closing. The Closing herein contemplated (the
"Closing") will take place at 10:00 a.m. on the "Closing Date" (as defined below
in this Section 4.03) and shall be effective as of the close of business on said
Closing Date. Subject to the terms and conditions of this Agreement, unless
otherwise mutually agreed upon in writing by an executive officer of each of
Newcourt and Snap-on, the parties shall use their reasonable efforts to cause
the "Closing Date" to occur on January 3, 1999. The place of Closing shall be at
the offices of Xxxxx & Lardner, or such other place as may mutually be agreed
upon by Newcourt and Snap-on.
4.04 Default by any Party Hereto at the Closing. Other than as may
result from the exercise of a party's right under this Agreement, if any of the
Snap-on Entities on the one hand, or any of the Newcourt Entities on the other
hand, shall fail or refuse to consummate either the Newcourt Investment, as
provided in Section 4.02 above, or the establishment of the Company as provided
in Section 4.01, or the execution and delivery of any Operative Documents, or if
the parties shall fail or refuse to consummate any of the transactions described
in this Agreement, prior to or on the Closing Date, the non-defaulting party
(i.e. either Snap-on or Newcourt), at its option and without prejudice to its
rights against any defaulting party, may either (i) unilaterally delay the
Closing while taking appropriate judicial action or seeking other remedies, or
(ii) refuse to consummate such transaction and thereby terminate all of its
obligations hereunder without any Liability. The parties hereto acknowledge that
the Newcourt Investment and the establishment of the Company are unique and
otherwise not available and agree that, in addition to any other remedies, the
non-defaulting party (i.e. either Snap-on or Newcourt) may invoke any equitable
remedies to enforce delivery or consummation of the Newcourt Investment or the
establishment of the Company, as the case may be, including, without limitation,
any action or suit for specific performance, as further detailed in Section
13.14 hereof.
ARTICLE V.
CERTAIN SNAP-ON RESPONSIBILITIES AND COMMITMENTS
5.01. Regulatory Approvals.
(a) For Snap-on. Snap-on shall be responsible for obtaining
all licenses, permits and Consents necessary to form the Company and to
permit the Company to sell a membership interest to Newcourt as
described in this Agreement, and shall use its best efforts to obtain
all licenses, permits and Consents necessary to permit the Company to
engage in the Business or as otherwise are necessary for any of the
Snap-on Entities to consummate the transactions hereby contemplated,
including but not limited to the Consents of Regulatory Authorities
identified on Schedule 2.05(a) attached hereto. The cost and expense of
obtaining such licenses, permits and Consents shall be a System Expense
as provided in Section 13.12 hereof.
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(b) For Newcourt. Snap-on shall reasonably cooperate with the
Newcourt Entities and provide such information and/or assistance as
Snap-on can reasonably provide to assist Newcourt in obtaining any and
all required Consents of Regulatory Authorities as provided under
Section 6.01 hereof.
(c) For the Company. Snap-on shall reasonably cooperate with
the Newcourt Entities and provide such information and/or assistance as
Snap-on can reasonably provide to assist Newcourt in providing
Financing Services, if necessary and to the extent permitted by Law,
under the Existing Programs to Snap-on Customers pursuant to Section
6.01(c).
5.02. Snap-on Services Agreement. At the Closing, and with effect
immediately following the Newcourt Investment, Snap-on shall enter into a
Management Services Agreement with the Company substantially in the form of
Exhibit 5.02 attached hereto (the "Snap-on Services Agreement").
5.03. License to Use Space. At the Closing, and with effect immediately
following the Newcourt Investment, Tools Company shall enter into a License to
Use Space with Company in form and substance acceptable to the parties (the
"Snap-on Space License").
5.04. License Agreement. At the Closing, and with effect immediately
following the Newcourt Investment, SFS shall enter into a License and Royalty
Agreement with the Company substantially in the form of Exhibit 5.04 attached
hereto (the "Snap-on License Agreement") and Snap-on, SFS and Technologies shall
execute a Consent in substantially the form attached thereto (the "Snap-on
Consent").
5.05. Third Party Consents. Snap-on will deliver, at the Closing,
consents or waivers from its lenders and, if necessary, from the lessor under
the lease described in Section 7.11 hereof necessary to permit the Snap-on
Entities to consummate the transactions contemplated by this Agreement without
causing a default under any Contract between the Snap-on Entities and such third
parties.
5.06. Transfer Agreement. At the Closing, and with effect immediately
following the Newcourt Investment, Snap-on, Tools Company, SFS, and the Company
shall enter into a transfer agreement with the Company in form and substance
acceptable to the parties (the "Transfer Agreement").
ARTICLEE VI
CERTAIN NEWCOURT RESPONSIBILITIES AND COMMITMENTS
6.01. Regulatory Approvals.
(a) For Newcourt. Newcourt shall be responsible for obtaining
all licenses, permits and Consents of Regulatory Authorities required
for it to participate in a limited liability company of the type
described in this Agreement, or as otherwise are necessary for any
Newcourt Entity to consummate the transactions hereby
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contemplated. The cost and expense of obtaining such licenses, permits
and Consents shall be a System Expense as provided in Section 13.12
hereof.
(b) For Snap-on. Newcourt shall reasonably cooperate with
Snap-on and provide such information and/or assistance as Newcourt can
reasonably provide to assist the Company in obtaining any and all
required licenses and permits, and Consents of Regulatory Authorities
as provided under Section 5.01 hereof.
(c) For the Company. If, despite Snap-on's best efforts
pursuant to Section 5.01(a), the Company has not obtained as of the
Closing Date any license, permit or Consent necessary to provide
Financing Services to Snap-on Customers under the Existing Programs,
then, to the extent permitted by Law, Newcourt shall, or shall cause a
Newcourt Affiliate to, offer such Financing Services, in the name of
the Company, to Snap-on Customers on such terms and conditions as are
acceptable to Snap-on and Newcourt, until the Company has obtained such
license, permit or Consent.
6.02 Newcourt Services Agreement. At the Closing, and with effect
immediately following the Newcourt Investment, Newcourt shall enter into a
Management Services Agreement with the Company in form and substance acceptable
to the parties (the "Newcourt Services Agreement").
6.03 Funding Agreement. At the Closing, and with effect immediately
following the Newcourt Investment, Newcourt shall enter into one or more
receivables purchase agreements and related agreements (including a servicing
agreement) with the Company having the terms described on Exhibit 6.03 attached
hereto and such other terms as shall be agreed to by the parties (the "Funding
Agreement").
6.04 Newcourt Space License. At the Closing, and with effect
immediately following the Newcourt Investment, Newcourt shall enter into a
license to use space with the Company in form and substance acceptable to
Newcourt and Snap-on (the "Newcourt Space License").
ARTICLE VII
CONDUCT OF BUSINESS PENDING
CONSUMMATION; ADDITIONAL AGREEMENTS
7.01 Covenants of Newcourt. From the date of this Agreement until the
earlier of the Closing or the termination of this Agreement, except as
contemplated by this Agreement, unless the prior written consent of Snap-on
shall have been obtained, which consent shall not be unreasonably withheld, the
Newcourt Entities shall (i) operate their respective businesses only in the
usual, regular, and ordinary course, which in all events shall allow the
Newcourt Entities to continue to engage in, and enter into Contracts with
respect to, acquisition and joint venture activity, (ii) preserve intact their
respective business organizations and Assets, and (iii) take no action which
would materially adversely affect the ability of any party to obtain any
Consents required for the transactions contemplated hereby without
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imposition of a Burdensome Condition, or which would materially adversely affect
the ability of any party to perform its covenants and agreements under this
Agreement.
7.02. Covenants of Snap-on Entities. From the date of this Agreement
until the earlier of the Closing or the termination of this Agreement, except as
expressly contemplated by this Agreement, unless the prior written consent of
Newcourt shall have been obtained, which consent shall not be unreasonably
withheld:
(a) Each Snap-on Entity shall (i) operate its businesses only
in the usual, regular, and ordinary course, (ii) preserve intact its
organization and Assets, and (iii) take no action which would
materially adversely affect the ability of any party to obtain any
Consents required for the transactions contemplated hereby without
imposition of a Burdensome Condition, or which would materially
adversely affect the ability of any party to perform its covenants and
agreements under this Agreement.
(b) Snap-on shall take, and shall cause its Affiliates to
take, all necessary and appropriate actions required by Article IV of
this Agreement, including the execution, delivery and performance by
the Company of this Agreement and the Company Supplement, formation of
the Company, and the consummation by the Company on the Closing Date of
the transactions contemplated herein and therein, to be consummated on
the Closing Date.
7.03. Adverse Changes in Condition. Each of Snap-on and Newcourt agrees
to give written notice promptly to each other party upon becoming aware of the
occurrence or impending occurrence of any event or circumstance relating to it
which (i) is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on it or (ii) would cause or constitute a material
breach of any of its representations, warranties, or covenants contained herein,
and to use its reasonable efforts to prevent or promptly to remedy the same.
7.04. Applications; Antitrust Notifications. Each party shall promptly
prepare and file, and each other party shall cooperate in the preparation and,
where appropriate, filing of, applications with all Regulatory Authorities
having jurisdiction over the transactions contemplated by this Agreement seeking
the requisite Consents necessary to consummate the transactions contemplated by
this Agreement, as contemplated by Sections 5.01 and 6.01 hereof. To the extent
required by the HSR Act, Newcourt will promptly file with the United States
Federal Trade Commission and the United States Department of Justice all such
notifications and reports required to be filed by Newcourt therewith to
consummate the transactions contemplated hereby and any supplemental or
additional information which may reasonably be requested in connection
therewith. Any fees required under the HSR Act (the "HSR Fee") in connection
with a notice under the HSR Act relating to the Newcourt Investment shall be
paid by Newcourt.
7.05. Systems Matters.
(a) Newcourt and Snap-on agree to cooperate in the
negotiation, execution and implementation by the Company of all
agreements necessary and appropriate
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by which the Company shall engage * , or other software developer (the
"System Developer"), to specify, design and implement a software system
to account for and manage all functions arising out of or relating to
the origination, transfer, management, servicing, sale and collection
of the Finance Contracts. Such agreements (together, the "Systems
Agreement") shall have terms and conditions reasonably acceptable to
Newcourt and Snap-on. The parties agree to cooperate in the management
of the integration of that system with the product order system of
Snap-on, the Snap-on Dealer Software System ("DSS") and the software
and other systems provided to the Company by or through Newcourt as
contemplated in Sections 7.05(b) and (c) hereof. Newcourt agrees to
allow the System Developer to operate across all Newcourt platforms
applicable to the Business and to have access to all Newcourt systems
applicable to the Business.
(b) Newcourt agrees to use its best efforts to provide the
Company with direct access to the Newcourt lease management system by
negotiating on behalf of the Company a systems agreement with *
giving the Company an independent fully paid and perpetual right to use
the lease program software and all other operating systems and Newcourt
software to be used by the Company. Newcourt will take such steps as
are necessary to refine any applicable Newcourt Systems for application
on a standardized basis in all foreign jurisdictions in which a
Newcourt Entity operates.
(c) Newcourt will provide to the Company the right to use any
Newcourt software systems that operate with the Newcourt lease
management system including, without limitation, * ("Newcourt
Systems"). Such right to use Newcourt Systems will be defined in a
License Agreement between Newcourt and the Company (the "Newcourt
Systems Agreement") granting the Company the royalty-free (during the
term of the Operating Agreement) right to use such systems and
improvements, providing appropriate training and technical support and
otherwise having such terms as are reasonably acceptable to the
parties; provided, however, that such agreement shall require the
Company to reimburse Newcourt for any incremental cost imposed on
Newcourt by any provider of Newcourt Systems as a result of such
licensing or sublicensing. Further, in the event that Newcourt is
unsuccessful in arranging the direct systems agreement with * described
in Section 7.05(b), Newcourt will sublicense to Company the right to
use the Newcourt lease management system at a per location charge equal
to the per location charge paid by Newcourt to * . Newcourt will
provide to the Company systems support and technological enhancements
necessary to define interaction between the Newcourt lease management
system, the data system to be provided by the System Developer, and
DSS. Upon termination of the Operating Agreement, the Company's right
to use the Newcourt Systems and
------------------------
*Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separatley with the
SEC pursuant to Rule 24b-2.
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Newcourt lease management system, and to obtain improvements, training
and technical support from Newcourt for such systems will continue on
commercially reasonable terms.
7.06. Employee Matters. The parties will handle employee matters in
accordance with the initial Annual Operating Plan.
7.07 Agreement as to Efforts to Consummate.
(a) Subject to the terms and conditions of this Agreement,
each party agrees to use its reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things
necessary, proper, or advisable under applicable Laws to consummate and
make effective, as soon as practicable after the date of this
Agreement, the transactions contemplated by this Agreement, including
using its reasonable efforts to lift or rescind any order adversely
affecting its ability to consummate the transactions contemplated
herein and to cause to be satisfied the conditions referred to in
Article VIII of this Agreement; provided, that nothing herein shall
preclude any party from exercising its rights under this Agreement.
Each party shall use its reasonable efforts to obtain all Consents
necessary or desirable for the consummation of the transactions
contemplated by this Agreement.
(b) Notwithstanding the conditions to Closing set forth in
Article VIII below, if any required Consent under any Contract is not
obtained by the date of the Closing, and the parties hereto waive such
Consent and proceed with the Closing, each party shall nevertheless
continue to pursue such Consents and at the request of the Company each
party shall cooperate with the Company in any reasonable arrangement
designed to provide to the Company the benefits under or of any such
contract or Assets relating thereto. Nothing contained in this
Agreement or any Operative Document shall be deemed to constitute any
assignment or attempted assignment by any party hereto of any Contract
if any assignment or attempted assignment would constitute a Default
thereunder. Each party shall use its reasonable efforts to execute all
agreements to which it is intended to be a party in connection with the
transactions contemplated hereby, including the Company Supplement and
all other Operative Documents.
7.08. Investigation and Confidentiality.
(a) Prior to the Closing, each party shall keep each other
party advised of all material developments relevant to its business,
and to the formation of the Company and to the Newcourt Investment, and
shall permit each other party to make or cause to be made such
investigation of its business and properties and its financial and
legal condition as the other party reasonably requests, provided that
such investigation shall be reasonably related to the transactions
contemplated hereby and shall not interfere unnecessarily with normal
operations. No investigation by a party shall affect the
representations and warranties of any other party.
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(b) Each party shall, and shall cause its representatives to,
maintain the confidentiality of all Information and shall not use such
Information for any purpose except in furtherance of the transactions
contemplated by this Agreement, all as further provided in Article X
hereof. Newcourt specifically agrees that all documents and information
provided by any Snap-on Entity prior to the date hereof in connection
with Newcourt's investigation of Snap-on's business shall be deemed to
be Information and subject to the provisions of Article X hereof.
Snap-on specifically agrees that all documents and information provided
by any Newcourt Entity prior to the date hereof in connection with
Snap-on's investigation of Newcourt's business shall be deemed to be
Information and subject to the provisions of Article X hereof.
7.09 Certain Actions. Except with respect to this Agreement and the
transactions contemplated hereby, neither Snap-on nor any Affiliate thereof nor
any representatives thereof, shall, at any time on or after the date hereof and
until the Closing has occurred, or this Agreement has terminated, directly or
indirectly solicit any Acquisition Proposal by any Person or furnish to any
Person any non-public information that it is not legally obligated to furnish,
negotiate with respect to, or enter into any Contract with respect to, any
Acquisition Proposal. Snap-on shall promptly notify Newcourt in the event
Snap-on receives an Acquisition Proposal.
7.10. Updated Schedules. Snap-on and Newcourt each covenant and agree
that it shall cause the schedules identified in its representations and
warranties set forth in Articles I and II, respectively, to be updated and
delivered (and certified as being true and correct) to the other to reflect
disclosure at the Closing Date; provided, however, that no such updated schedule
shall be taken into account for purposes of determining whether the conditions
set forth in Sections 8.02(a) and 8.02(b) have been satisfied.
7.11. Headquarters Lease. In connection with the establishment of the
Company, prior to Closing, Snap-on and Newcourt shall cooperate to select a site
to serve as the Company's corporate headquarters (the "Headquarters"). The
parties shall jointly select a suitable location for the Headquarters and
negotiate on behalf of the Company lease terms for the Headquarters reasonably
acceptable to both Snap-on and Newcourt. The Company shall execute the relevant
lease agreements and related documents (the "Headquarters Lease") at the Closing
or as soon thereafter as possible. In the event that SCC should execute the
Headquarters Lease prior to the Closing, then Snap-on and Newcourt shall
cooperate to procure from the lessor all necessary consents and approvals
relating to the succession of the Company to SCC's rights and obligations under
the Headquarters Lease. The parties agree that any costs incurred by Snap-on and
Newcourt in selecting the Headquarters, negotiating the Headquarters Lease,
building out and furnishing the Headquarters and other expenses incurred in
connection with the procurement and establishment of the Headquarters shall be a
System Expense.
7.12. Initial Annual Operating Plan; Operations Manual. Newcourt and
Snap-on shall cooperate to prepare an initial Annual Operating Plan and a
Credit, Collections and Operations Manual containing elements described in the
Operating Agreement and such other elements as the parties may agree. In the
event that the parties do not succeed, for any
-15-
reason, in reaching agreement with respect to the initial Annual Operating Plan
or the Credit, Collections and Operations Manual on or before December 31, 1998,
then either party may, at its election, terminate this Agreement without any
liability or obligation except as provided in Articles X and XI.
7.13. Plans and Policies. Newcourt and Snap-on shall cooperate prior to
the Closing Date to develop, to the extent such are not part of the Annual
Operating Plan or the Credit, Collections and Operations Manual, an employee
handbook for the Company, a sales and marketing plan for the Company, residual
investment policies for the Company, expansion programs for the Company, and
compensation plans for the employees of the Company.
7.14. Snap-on and Newcourt Guarantees. In the event that any third
party contracting with the Company shall require either or both of Snap-on and
Newcourt or any Snap-on Entity and/or any Newcourt Entity to guarantee the
Company's performance or payment of any obligation set forth in such contract,
Newcourt and Snap-on agree that such guarantee obligation will, subject to the
following sentence, be provided on terms and conditions agreeable to the
parties. Each of Newcourt and Snap-on agree that, before either party commits to
any such guarantee obligation, it will provide the other party with at least ten
Business Days' prior notice of the proposed guarantee obligation and shall not
undertake such obligation if the other party objects to same within such ten
Business Day period.
7.15. Preferred Relationship; Noncompete.
(a) Snap-on agrees that it will view the Company as the
preferred source of financing for the activities of its Subsidiaries.
Snap-on and Newcourt will work with the Company in an effort to expand
the Snap-on Dealer Credit Programs and to offer Snap-on Customers new
credit programs in the future. Snap-on agrees that it will not support
or sponsor any captive leasing program, joint venture or programmatic
relationship with an alternative financing provider if such program,
venture or relationship competes directly with the Snap-on Dealer
Credit Programs. Snap-on agrees that it shall promote only the Company
to its Subsidiaries as the preferred financing source for Snap-on
Subsidiaries; * .
(b) In order to assure proper confidentiality and protection
of the intellectual property rights (including trade secrets) of
Snap-on, its Subsidiaries, and the Company, Newcourt covenants and
agrees that it shall not at any time, prior to the termination of this
Agreement and the Operating Agreement, directly or indirectly, enter
into any program, joint venture or similar arrangement with *
(collectively, the "Snap-on Competitors") relating to the financing or
leasing of products competitive with the products sold by Snap-on and
its Subsidiaries.
------------------------
*Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separatley with the
SEC pursuant to Rule 24b-2.
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(c) Notwithstanding Section 7.15(b), the restrictions set
forth in Section 7.15(b) shall not preclude any Newcourt Entity from:
(ii) *
(ii) *
(iii) *
(iv) *
(v) *
(vi) * .
7.16. International Expansion of Credit Programs. Snap-on and Newcourt
acknowledge that although the original purpose of the Company is to provide
Financing Services under the Snap-on Dealer Credit Programs to Snap-on Customers
in the United States, both parties desire to expand this purpose to include the
provision of such Financing Services to Snap-on Customers throughout the world.
Snap-on, Newcourt and the Company shall use their best efforts to mutually agree
on how best to implement this expansion in a manner which is advantageous for
both parties from a financial, tax and legal perspective.
ARTICLE VIII
CONDITIONS TO CLOSING
8.01 Conditions to Obligations of Each Party. The obligations of each
party to be performed under this Agreement and consummate the transactions
contemplated hereby are subject to the satisfaction of the following conditions,
unless waived by such party pursuant to Section 13.01 of this Agreement:
(a) Regulatory Approval. The Company shall have been duly
formed and organized and either (i) the Company shall have received all
licenses, permits and Consents necessary to engage in the Business or
(ii) if the Company has not received any license, permit or Consent
necessary to provide Financing Services to Snap-on Customers under the
Existing Programs, Snap-on and Newcourt shall have agreed to the terms
and conditions under which Newcourt or a Newcourt Affiliate shall
provide such Financing Services to Snap-on Customers until the Company
receives any such
------------------------
*Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separatley with the
SEC pursuant to Rule 24b-2.
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license, permit or Consent. All Consents of, filings and registrations
with, and notifications to, all Regulatory Authorities required for
consummation of the transactions contemplated by this Agreement, other
than those Consents necessary to engage in the Business, shall have
been obtained or made and shall be in full force and effect and all
waiting periods required by Law shall have expired. No Consent obtained
from any Regulatory Authority which is necessary to consummate the
transactions contemplated hereby shall be conditioned or restricted by
a Burdensome Condition.
(b) Consents and Approvals. In addition to the Consent of
Regulatory Authorities referenced in Section 8.01(a) above, each party
shall have obtained any and all Consents required for formation of the
Company and the Newcourt Investment (including, without limitation, the
consents identified on Schedules 2.05(a) and 2.05(b) with respect to
Snap-on). No Consent so obtained which is necessary to consummate the
transactions contemplated hereby shall be conditioned or restricted by
a Burdensome Condition.
(c) Legal Proceedings. No court or Regulatory Authority of
competent jurisdiction shall have enacted, issued, promulgated,
enforced or entered any Law or Order (whether temporary, preliminary or
permanent) or taken any other action which prohibits, materially
restricts or makes illegal consummation of any of the transactions
contemplated by this Agreement.
(d) Initial Annual Operating Plan; Operations Manual. Newcourt
and Snap-on shall have agreed to the form and content of the initial
Annual Operating Plan and the Credit, Collections and Operations
Manual.
8.02. Conditions to Closing.
(a) In addition to the conditions set forth in Section 8.01
hereof, the consummation by Snap-on and the Snap-on Entities of the
transactions contemplated hereby is expressly subject to the
satisfaction of the following conditions, unless waived by Snap-on
pursuant to Section 13.01 of this Agreement:
(i) Each and every warranty and representation of
Newcourt contained in this Agreement shall be true and correct
as of the date when made and as of the Closing as through made
on the date thereof, and an executive officer of Newcourt
shall deliver a certificate to that effect to Snap-on at the
Closing (the "Newcourt Closing Certificate"), the form of
which shall be reasonably acceptable to the parties;
(ii) Newcourt shall have performed and complied in
all material respects with each and every agreement, covenant
and obligation required by this Agreement to be performed or
complied with by it at or prior to the Closing;
-18-
(iii) Newcourt shall have made the deliveries
contemplated by Section 8.04 hereof;
(iv) * shall have entered into a Resale Agreement, on
terms acceptable to Snap-on and Newcourt, with SFS for the
purchase by * from SFS and the resale by * of the Financing
Contracts owned by SFS immediately prior to the Closing Date
(the "Resale Agreement");
(v) Newcourt shall have delivered to Snap-on a
representation and warranty regarding the Euro compliant
status of its systems in form and substance acceptable to
Snap-on in its discretion; and
(vi) Newcourt Credit Group Inc. ("NCG") shall have
executed and delivered to Snap-on a guarantee in form and
substance acceptable to Snap-on by which NCG guaranties the
obligations of the Newcourt Entities under the Operative
Documents.
(b) In addition to the conditions set forth in Section 8.01
hereof, the consummation by the Newcourt Entities of the transactions
contemplated hereby is expressly subject to the satisfaction of the
following conditions, unless waived by Newcourt pursuant to Section
13.01 of this Agreement:
(i) Each and every warranty and representation of
Snap-on contained in this Agreement shall be true and correct
as of the date when made and as of the Closing as though made
on the date thereof, and an executive officer of Snap-on shall
deliver a certificate to that effect to Newcourt at the
Closing (the "Snap-on Closing Certificate"), the form of which
shall be reasonably acceptable to the parties;
(ii) The Snap-on Entities and the Company shall have
performed and complied in all material respects with each and
every agreement, covenant and obligation required by this
Agreement to be performed or complied with by each of them at
or prior to the Closing;
(iii) Snap-on shall have made the deliveries
contemplated by Section 8.03 hereof;
(iv) * and SFS shall have entered into the Resale
Agreement; and
------------------------
*Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separatley with the
SEC pursuant to Rule 24b-2.
-19-
(v) Snap-on shall have executed and delivered to
Newcourt a guarantee in form and substance acceptable to
Newcourt by which Snap-on guaranties the obligations of the
Snap-on Entities under the Operative Documents.
8.03. Deliveries by Snap-on. Snap-on shall deliver or cause to be
delivered to Newcourt and/or the Company (as applicable), at or prior to the
Closing Date, the following, all in form reasonably satisfactory to Newcourt's
counsel:
(a) Such certificates and documents of officers of the Snap-on
Entities and public officials as shall be reasonably requested by
Newcourt's counsel to establish the existence and good standing of the
Snap-on Entities and the Company, and the due corporate power and
corporate authorization of the Snap-on Entities and the Company to
execute and deliver this Agreement and the Operative Documents and to
consummate the transactions contemplated hereby and thereby;
(b) The Snap-on Space License, duly executed by relevant
Snap-on Entities;
(c) The Snap-on Services Agreement, duly executed by Snap-on;
(d) The Snap-on License Agreement, duly executed by SFS and
the Snap-on Consent duly executed by Snap-on, Technologies and SFS;
(e) The Operating Agreement, duly executed by Newco;
(f) The Transfer Agreement, duly executed by the relevant
Snap-on Entities;
(g) The Snap-on Closing Certificate;
(h) The Resale Agreement, duly executed by SFS and Creditcorp
SPC, LLC;
(i) Program Rights Agreement, duly executed by Snap-on and
SCC; and
(j) All other instruments and documents required by this
Agreement, any other Operative Document, the Annual Operating Plan, or
the Credit, Collections and Operations Manual to be delivered by any of
the Snap-on Entities to Newcourt or the Company, including without
limitation those documents necessary to complete the formation of the
Company as provided herein, and such other instruments and documents
which Newcourt or its counsel may reasonably request consistent with
the provisions hereof and thereof.
8.04. Deliveries by Newcourt. Newcourt shall deliver or cause to be
delivered to Snap-on or the Company (as applicable), at or prior to the Closing,
the following, all in form reasonably satisfactory to Snap-on's counsel:
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(a) Such certificates and documents of officers of Newcourt
and public officials as shall be reasonably requested by Snap-on's
counsel to establish the existence and good standing of Newcourt and
the due corporate power and corporate authorization of Newcourt to
execute and deliver this Agreement and the Operative Documents and to
consummate the transactions contemplated hereby and thereby;
(b) The Newcourt Services Agreement, duly executed by
Newcourt;
(c) The Operating Agreement, duly executed by Newcourt;
(d) The Subscription Agreement duly executed by Newcourt;
(e) The Funding Agreement duly executed by Newcourt;
(f) The Newcourt Space License, duly executed by the relevant
Newcourt Entities;
(g) The Newcourt Closing Certificate;
(h) The Newcourt Systems Agreement duly executed by Newcourt;
and
(i) All other instruments and documents required by this
Agreement, any other Operative Document, the Annual Operating Plan, or
the Credit, Collections and Operations Manual to be delivered by
Newcourt to Snap-on or the Company, and such instruments and documents
which Snap-on or its counsel may reasonably request consistent with the
provisions hereof and thereof.
8.05. Deliveries by the Company. At the Closing, and upon consummation
of the Newcourt Investment, Snap-on and Newcourt shall cause the Company to
promptly deliver to Newcourt or Snap-on (as applicable) the following:
(a) The Company Supplement, duly executed by the Company;
(b) The Snap-on Services Agreement, duly executed by the
Company;
(c) The Newcourt Services Agreement, duly executed by the
Company;
(d) The Snap-on Space License, duly executed by the Company;
(e) The Newcourt Space License, duly executed by the Company;
(f) The Snap-on License Agreement, duly executed by the
Company;
(g) The Subscription Agreement duly executed by the Company;
(h) The Funding Agreement duly executed by the Company;
(i) The Newcourt Systems Agreement duly executed by the
Company;
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(j) The Transfer Agreement, duly executed by the Company; and
(k) All other instruments and documents required by this
Agreement, any other Operative Document, the Annual Operating Plan or
the Credit, Collections and Operations Manual to be delivered by the
Company to Newcourt or Snap-on, and such other instruments and
documents which Newcourt or Snap-on may reasonably request consistent
with the provisions hereof and thereof.
8.06. Covenants to Satisfy Conditions. Newcourt will use all reasonable
efforts to ensure that the conditions set forth in Sections 8.01 and 8.02 hereof
are satisfied, and will timely make the deliveries described in Section 8.04.
Snap-on will use all reasonably efforts to ensure that the conditions set forth
in Sections 8.01 and 8.02 hereof are satisfied, and will timely make the
deliveries described in Section 8.03. In addition Snap-on and Newcourt will use
all reasonably efforts to cause the Company timely to deliver to Snap-on and
Newcourt the items described in Section 8.05 hereof.
ARTICLE IX
INDEMNIFICATION AND LIMITATIONS ON LIABILITY
9.01. Indemnity for Pre-Closing Actions. From and after the date
hereof, Snap-on shall indemnify, defend and hold harmless the Company, and its
members, officers, directors, agents, representatives, and employees (Snap-on is
referred to in this Section 9.01 as the "Indemnifying Party," and the party to
whom such indemnification obligation is owed is referred to in this Section 9.01
as the "Indemnified Party"), from and against, any and all actions, claims,
losses, costs, Liabilities, and expenses (including reasonable attorneys' fees)
resulting from or arising out of any act or omission (occurring entirely before
the Closing Date) of any remote or immediate predecessor entity of the Company
(including, without limitation, SCC) or any officer, employee or agent of any of
them (collectively "Pre-closing Claims") and will promptly reimburse any
Indemnified Party for all Pre-closing Claims as incurred in connection with the
investigation of, preparation for or defense of any pending or threatened action
or proceeding (collectively, "Proceeding"), whether or not such Indemnified
Party is a formal party to any such Proceeding. * An Indemnified Party shall
not, without the prior written consent of the Indemnifying Party (which consent
shall not be unreasonably withheld) settle, compromise or consent to the entry
of any judgment in any pending or threatened Proceeding in respect of which
indemnification may be sought hereunder (whether or not the Indemnified Party is
an actual or potential party to such Proceeding), provided, however, that the
Indemnified Party may execute such settlement, compromise or consent to the
entry of judgment in any pending or threatened Proceeding if same includes an
unconditional release of the Indemnifying Party hereunder from all liability
arising out of such Proceeding.
------------------------
*Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separatley with the
SEC pursuant to Rule 24b-2.
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9.02. Indemnity Under This Agreement. From and after the date hereof,
Snap-on shall indemnify, defend and hold harmless the Company and any Newcourt
Entity and their respective members, officers, directors, agents,
representatives, and employees, and Newcourt shall indemnify, defend and hold
harmless the Company, any Snap-on Entity, and their respective members,
officers, directors, agents, representatives, and employees (Snap-on and
Newcourt are referred to respectively in this Section 9.02 as the case may be as
the "Indemnifying Party" and the party to whom such indemnification obligation
is owed is referred to in this Section 9.02 as the "Indemnified Party"), from
and against any and all actions, claims, losses, costs, Liabilities, and
expenses (including reasonable attorneys' fees) resulting from or arising out of
any breach by the Indemnifying Party of any representation, warranty, or
covenant by such Indemnifying Party in this Agreement (collectively, for
purposes of this Section 9.02 only, "Claims") and will promptly reimburse any
Indemnified Party for all Claims as incurred in connection with the
investigation of, preparation for, or defense of any pending or threatened
action or proceeding (collectively, "Proceeding"), whether or not such
Indemnified Party is a formal party to any such Proceeding. Notwithstanding the
foregoing, the Indemnifying Party shall not be liable (a) for any amount paid by
or on behalf of an Indemnified Party in settlement of any Claim without the
consent of the Indemnifying Party (which consent shall not be unreasonably
withheld), or (b) in respect of any losses, claims, damages, liabilities or
expenses that a court of competent jurisdiction shall have determined by final
judgment resulted primarily from the bad faith, negligence, or willful
misconduct of an Indemnified Party. An Indemnified Party shall not, without the
prior written consent of the Indemnifying Party (which consent shall not be
unreasonably withheld), settle, compromise or consent to the entry of any
judgment in any pending or threatened Proceeding in respect of which
indemnification may be sought hereunder (whether or not the Indemnified Party is
an actual or potential party to such Proceeding), provided, however, that the
Indemnified Party may execute such settlement, compromise or consent to the
entry of judgment in any pending or threatened Proceeding if the same includes
an unconditional release of the Indemnifying Party hereunder from all liability
arising out of such Proceeding.
9.03. Procedure. Promptly after a party to whom an indemnification
obligation is owed hereunder (an "Indemnified Party") receives notice of the
commencement of any Proceeding in respect of which indemnification may be sought
hereunder, the Indemnified Party will notify the party that is obligated to
indemnify hereunder (an "Indemnifying Party"); but the omission to so notify the
Indemnifying Party shall not relieve the Indemnifying Party from any obligation
hereunder unless, and only to the extent that, such omission results in the
Indemnifying Party's forfeiture of substantive rights or defenses. If any such
Proceeding shall be brought against the Indemnified Party, the Indemnifying
Party shall, upon written notice given reasonably promptly following the
Indemnified Party's notice to the Indemnifying Party of any such Proceeding, be
entitled to assume the defense thereof at its own expense with counsel chosen by
the Indemnifying Party and reasonably satisfactory to the Indemnified Party;
provided; however, that any Indemnified Party may, at its own expense, retain
separate counsel to participate in such defense.
9.04. Limitation on Liability. IN NO EVENT SHALL ANY PARTY HERETO BE
LIABLE TO THE OTHER UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR
OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST
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PROFITS, EXEMPLARY, PUNITIVE,
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY
EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER ANY PARTY HERETO HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE
FOREGOING DOES NOT PRECLUDE ANY PARTY FROM BEING INDEMNIFIED AGAINST THIRD-PARTY
CLAIMS UNDER ANY OF THE FOREGOING THEORIES OR FOR ANY OF THE FOREGOING DAMAGES.
9.05. * . * .
9.06. Sole Remedies. Snap-on and Newcourt, on behalf of themselves,
and, respectively, the Snap-on Entities and the Newcourt Entities, agree that
from and after the Closing Date their sole remedies for any breach of any
representation, covenant or warranty contained in this Agreement shall be
limited to the right of indemnification as and to the extent set forth in this
Article IX, and in all events subject to all of the limitations herein, or, in
the alternative, the right to terminate the Operating Agreement pursuant to the
provisions of Article XII thereof, and the parties waive all and each other
remedy available at law or in equity, provided, however, that this limitation
shall not apply in respect of any action brought for fraud with an actual intent
to deceive or any right to remedies described in Section 13.14 hereof.
ARTICLE X
CONFIDENTIAL INFORMATION; PUBLICITY
10.01. Confidential Information.
(a) The parties agree that any and all technical, financial,
operations or business information including, but not limited to,
customer data, marketing plans, customer lists, customer information,
customer account numbers, the status of any account, pricing
information, computer access codes, instruction and/or procedural
manuals, SCC's current operating policies and manuals, information
prepared for or used in the preparation of the Annual Operating Plan
and Credit, Collections and Operations Manual, or financial data of
either party ("Information") furnished or disclosed by any party to
another party or obtained by any party as a result of its ownership
interest in the Company shall be deemed the property of the disclosing
party or the Company, as applicable, and when in tangible form, shall
be returned by the receiving party to the disclosing party or the
Company upon request along with any copies as may be authorized herein.
(b) "Information" shall not include: (1) information
previously known to the receiving party free of any obligation to keep
it confidential as evidenced by written
------------------------
*Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separatley with the
SEC pursuant to Rule 24b-2.
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records; (2) information that has been or subsequently is made public,
through no wrongful act of the receiving party or any third party; or
(3) information that is received from a third party without restriction
and without breach of this Agreement, other than information provided
to such party in connection with its performance of this Agreement or
any other Operative Document.
(c) Each party agrees that it shall hold Information in
confidence and shall not make disclosure of Information to anyone
except such of its employees or third party contractors or agents to
whom such disclosure is necessary for the purpose of and as permitted
in performance of this Agreement, except in the following
circumstances: (i) to the extent necessary to comply with a specific
applicable law or the valid final order of a court of competent
jurisdiction in which the party making the disclosure or communication
shall notify the other party in writing and shall seek confidential and
proprietary treatment of the information; (ii) as part of normal
reporting or review procedures of such party's Board of Directors,
parent company, auditors and attorneys; provided, however, that such
persons or entities agree to be bound by the provisions of this
paragraph; (iii) to enforce its rights legally under this Agreement in
a court of competent jurisdiction; (iv) as is customary in connection
with the sale, transfer, pledge, syndication, assignment and/or
securitization of Finance Contracts and Financings (and/or any accounts
receivable or collateral in connection therewith); or (v) such
information as is part of the public domain through disclosure other
than by or through such party. Each party shall appropriately notify
each employee, contractor, or agent to whom Information is disclosed
that any such disclosures are made in confidence and shall be kept in
confidence by such employee, contractor, or agent, and shall require
any third party contractor or agent to sign a written agreement to
maintain the confidentiality of the Information.
(d) If the transactions contemplated by this Agreement are not
consummated, the parties shall maintain the confidentiality of
Information, and such Information shall not be used to the detriment of
the disclosing party or otherwise in any manner, and all such
Information (including copies and extracts thereof) shall be returned
to the disclosing party immediately upon its written request.
(e) The obligations of the parties hereunder shall survive and
be enforceable by temporary and permanent injunctive relief against the
breaching party and its employees, officers, directors, agents,
representatives, and contractors notwithstanding any termination of
this Agreement.
10.02. Confidentiality of Agreement; Publicity.
(a) Except as required by law, the parties shall keep
confidential and not disclose, and shall cause their officers,
employees, and agents to keep confidential and not disclose, any of the
terms and conditions of this Agreement or any of the Operative
Documents to any third party without the prior written consent of all
other parties.
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(b) The obligations of the parties hereunder shall survive and
be enforceable by temporary and permanent injunctive relief against the
breaching party and its employees, officers, directors, agents,
representatives, and contractors notwithstanding any termination of
this Agreement.
(c) Each party will consult with the other party prior to
issuing any press release or otherwise making any public statement with
respect to the transactions contemplated by this Agreement, and will
not issue any such release or make any such statement over the
reasonable objection of the other party, except as required by law or
the rules and regulations of any relevant securities exchange or
quotation system. The initial press release with respect to the
execution of this Agreement will be in substantially the form of the
attached Exhibit 10.02.
ARTICLE XI
CONCILIATION AND ARBITRATION OF DISPUTES
11.01. Conciliation. In the event of any dispute, claim, question or
disagreement arising out of or relating to this Agreement or any Operative
Document, other than a matter for which a dispute resolution mechanism is
specifically provided in this Agreement (including but not limited to a party's
right to seek specific performance, judicial remedies or injunctive relief as
provided in Sections 4.04, 10.01, 10.02 or 13.14 hereof) the parties shall use
reasonable efforts to settle such dispute, claim, question or disagreement. To
this effect, they shall consult and negotiate with each other, in good faith,
and, recognizing their mutual interests, attempt to reach a just and equitable
solution satisfactory to both parties. If settlement is not otherwise possible
within a reasonable time (not to exceed 20 days), the Chief Executive Officers,
Chief Financial Officers, or other comparable senior executive officers of
Snap-on and Newcourt, respectively, shall become involved in such efforts.
11.02. Arbitration. If the parties do not reach a solution within a
period of thirty (30) days after a matter is referred for conciliation, as
provided above, the dispute shall be submitted to final and binding arbitration
as the sole and exclusive remedy for such dispute. Unless prohibited by
applicable law, any claim shall be made by filing a written demand for
arbitration within one (1) year following the conduct, act or other event or
occurrence first giving rise to the claim; otherwise, the right to any remedy
shall be deemed forever waived and lost. The right and duty of the parties to
this Agreement to resolve any disputes by arbitration shall be governed
exclusively by the Federal Arbitration Act, as amended, and arbitration shall
take place according to the commercial arbitration rules of the American
Arbitration Association in effect as of the date hereof. The arbitration shall
be held at the office of the American Arbitration Association in Chicago,
Illinois. Each party will select one arbitrator and the two so chosen will
select a third, and failing selection of an arbitrator by either party or by the
two chosen by the parties, the arbitrator(s) shall be selected from a panel of
neutral arbitrators provided by the American Arbitration Association and shall
be chosen by the striking method. The parties each shall bear all of their own
costs of arbitration; however, the fees of the arbitrators shall be divided
equally between the parties. The arbitrators shall have no authority to amend or
modify the terms of this Agreement or any Operative Document. Each party further
agrees that, unless such a limitation is prohibited by applicable
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law, the other party shall not be liable for punitive or exemplary damages and
the arbitrators shall have no authority to award the same. The award or decision
by a majority of the arbitrators shall be final and binding on the parties and
may be enforced by judgment or order of any court having subject matter
jurisdiction in the state where the arbitration took place (an "Arbitration
State Court") or by any other court having jurisdiction over the parties. The
parties consent to the exercise of personal jurisdiction over them by any
Arbitration State Court and to the propriety of venue of any Arbitration State
Court for the purpose of carrying out this provision; and they waive any
objections that they would otherwise have to the same. No arbitration under this
Agreement shall include, by consolidation, joinder or in any other manner, any
Person other than the parties hereto or thereto and any Person in privity with
or claiming through, in the right of or on behalf of such a party, unless both
Snap-on and Newcourt consent in writing. To the extent permitted by applicable
law, no issue of fact or law shall be given preclusive or collateral estoppel
effect in any arbitration hereunder, except to the extent such issue may have
been determined in another proceeding between Newcourt or a Newcourt Entity and
Snap-on or a Snap-on Entity or any person in privity with or claiming through,
in the right of or on behalf of Newcourt or a Newcourt Entity or Snap-on or a
Snap-on Entity.
11.03. Provisional Remedies. Each party shall have the right to seek
from an appropriate court provisional remedies including, but not limited to,
temporary restraining orders or preliminary injunctions before, during or after
arbitration. Neither party need await the outcome of the arbitration before
seeking provisional remedies. Seeking any such remedies shall not be deemed to
be a waiver of either party's right to compel arbitration. Any such action shall
be brought by the party in the county (or similar political unit) or federal
judicial district where the relevant Snap-on Entity resides, or where any
property that may be subject of the action is located. The parties consent to
the exercise of personal jurisdiction over them by courts located there and to
the propriety of venue in such courts for the purpose of carrying out this
provision; they waive any objections that they would otherwise have to the same;
and they waive the right to have any such action decided by a jury.
11.04. Deadlock Events. Disputes relating to Deadlock Events shall be
governed by Section 12.4 of the Operating Agreement.
ARTICLE XII
TERM AND TERMINATION
12.01. Term. This Agreement shall take effect on the date hereof and
remain in effect for so long as the Operating Agreement remains in effect or
until terminated pursuant to Section 12.02 hereof.
12.02. Termination. This Agreement and the transactions contemplated
hereby may be terminated as follows:
(a) By written consent of each of Snap-on and Newcourt;
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(b) By either Snap-on or Newcourt, if Newcourt with respect to
Snap-on, or any Snap-on Entity with respect to Newcourt, shall have
failed to satisfy any of the conditions it is required to satisfy set
forth in Article VIII hereof on or before January 3, 1998;
(c) By either Snap-on or Newcourt if the Closing has not
occurred by March 31, 1999, provided that the terminating party is not
in breach of any material obligation under this Agreement;
(d) Any termination or expiration of the Operating Agreement;
or
(e) The dissolution of the Company.
12.03. Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 12.02, this Agreement shall become void and have
no effect, except that the provisions of Articles IX, X, XI, and XIII, and any
other provision necessary to give effect to such surviving provisions, shall
survive any such termination.
ARTICLE XIII
MISCELLANEOUS
13.01 Amendments and Waivers. Except as otherwise expressly provided
herein, this Agreement shall not be amended or modified in any fashion except by
an instrument in writing signed by the parties hereto. Waiver by a party of any
condition, or any breach of this Agreement by any other party, shall not be
effective unless in a writing signed by the waiving party, and no such waiver
shall operate or be construed as the waiver of any conditions other than those
expressly identified in the written waiver or of the same or another breach on a
subsequent occasion.
13.02. Nonassignability. All terms and provisions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns. This Agreement may not be
assigned by any party and no Membership Interest in the Company may be
Transferred by the Snap-on Entity or Newcourt Entity holding such Interest
without the prior written consent of the other party; provided, however, that
such consent shall not be required for the assignment by any party of its rights
and privileges hereunder to an Affiliate wholly owned, directly or indirectly,
by Newcourt or Snap-on, as the case may be (it being understood that no such
assignment shall relieve the assigning party of its duties or obligations
hereunder).
13.03. No Third Party Beneficiaries. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns. Except as set forth in Article IX, this
Agreement is not for the benefit of any other Person, other than the Snap-on
Entities, the Newcourt Entities and their respective Subsidiaries, and no other
Person, other than the Snap-on Entities, the Newcourt Entities and their
respective Subsidiaries, shall have any rights against the parties hereunder.
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13.04 Rules of Construction. The headings in this Agreement are
inserted only as a matter of convenience and in no way affect the terms or
intent of any provision of this Agreement. All defined phrases, pronouns, and
other variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular, or plural, as the actual identity of the organization, person,
or persona may require. No provision of this Agreement shall be construed
against any parties hereto by reason of the extent to which such parties or its
counsel participated in the drafting hereof. All references to dollars shall be
in United States Dollars.
13.05. Choice of Law. This Agreement is made and entered into under the
laws of the State of Wisconsin, and the laws of that State applicable to
agreements made and to be performed entirely thereunder (without giving effect
to the principles of conflicts of laws thereof) shall govern the validity and
interpretation hereof and the performance by parties hereto of their respective
duties and obligations hereunder.
13.06. Severability of Provisions. If any provision of this Agreement
shall be contrary to the internal laws of Wisconsin or any other applicable law,
at the present time or in the future, such provision shall be deemed null and
void, but shall not affect the legality of the remaining provisions of this
Agreement. This Agreement shall be deemed to be modified and amended so as to be
in compliance with applicable law and this Agreement shall then be construed in
such a way as will best serve the intention of the parties at the time of the
execution of this Agreement
13.07. Counterparts; Delivery. This Agreement may be executed in one or
more counterparts. Each such counterpart shall be considered an original and all
of such counterparts shall constitute a single agreement binding all the parties
as if all had signed a single document. The parties acknowledge that delivery of
executed counterparts of this Agreement may be effected by a facsimile
transmission or other comparable means, with an original document to be
delivered promptly thereafter via overnight courier.
13.08. Entire Agreement. This Agreement (including any schedules,
exhibits or other attachments hereto), taken together with the other Operative
Documents, constitute the entire agreement among the parties. This Agreement and
the other agreements referred to in the preceding sentence supersede all prior
and contemporaneous agreements, statements, understandings, and representations
of the parties, including, without limitation, the letter of intent dated
September 24, 1998. There are no representations, warranties, agreements,
arrangements, or understandings, oral or written between the parties relating to
the subject matter of this Agreement which are not fully expressed herein. The
parties agree that the traditional formulation of the parole evidence rule
(whereby extrinsic evidence may not be used to vary or contradict the
unambiguous terms of a document that represents a final and complete expression
of the parties' agreement) shall govern in any action or proceeding that may
ensue concerning this Agreement.
13.09. Last Day for Performance Other Than a Business Day. In the event
that the last day for performance of an act or the exercise of a right hereunder
falls on a day other than a Business Day, then the last day for such performance
or exercise shall be the first
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Business Day immediately following the otherwise last day for such performance
or such exercise.
13.10. Notices. All notices, requests, consents, or other
communications required or permitted to be given under this Agreement shall be
in writing, may be delivered in person, by overnight air courier, or by
certified or registered mail (return receipt requested with all fees prepaid),
and shall be deemed to have been duly given and to have become effective upon
the date actually delivered to the parties or their assignees at the following
addresses:
If to Snap-on: Snap-on Incorporated
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: CFO & General Counsel
If to Newcourt:
CFO & Chief Counsel
Newcourt Financial USA Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
The persons or addresses to which mailings or deliveries shall be made may be
changed from time to time by notice given pursuant to the provisions of this
section.
13.11. Waiver of Jury Trial. The parties hereto hereby waive their
respective right to trial by jury of any cause of action, claim, counterclaim or
cross-complaint in any action, proceeding and/or hearing brought by any party
hereto against another party hereto on any matter whatsoever relating to,
resulting from, arising out of, or in any way connected with this Agreement, or
any amendment or breach hereof, including, without limitation, any claim or
injury or damage, or the enforcement of any remedy under any law, statute, or
regulation, emergency or otherwise, now or hereafter in effect.
13.12. Expenses.
(a) Except as otherwise specifically provided in this
Agreement, each party shall bear and pay all direct costs and expenses
incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including filing, registration and applicable
fees, printing fees, and fees and expenses of its own financial or
other consultants, investment bankers, accountants, and counsel.
Notwithstanding the foregoing, any expenses incurred by any Snap-on
Entity or any Newcourt Entity on behalf of or for the benefit of the
Company which are agreed upon in advance and provided for in the Annual
Operating Plan shall be paid by the Company as provided in subsection
(b) below. All expenses related to relocation and severance of
employees of any Snap-on Entity in connection with the transactions
contemplated herein shall be incurred by the relevant Snap-on Entity.
Similarly, all expenses related to relocation
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and severance of any employees of any Newcourt Entity in connection
with the transactions contemplated herein shall be incurred by the
relevant Newcourt Entity.
(b) Any "System Expenses" incurred by any Snap-on Entity or
any Newcourt Entity shall be paid by the party incurring them and shall
be treated as a working capital loan by such party to the Company. Such
System Expense loans will accrue interest at an annual interest rate of
seven percent (7%) or such other commercially reasonable rate as shall
be agreed by Snap-on and Newcourt. The Company shall make quarterly
payments of interest and principal with respect to such System Expense
loans, which loans shall be amortized over the period ending at the end
of the Initial Term. For purposes of this Agreement, "System Expenses"
shall consist of any costs incurred directly or indirectly by any
Newcourt Entity or Snap-on Entity in connection with the development of
the software system referred to in Section 7.05(a) hereof, any costs
treated as a System Expenses in Sections 5.01, 6.01, or 7.11, hereof or
elsewhere in the Operative Documents, and any direct out-of-pocket,
non-personnel costs incurred by any Newcourt Entity or any Snap-on
Entity in connection with the preparation and delivery of the items
listed at Section 7.13 hereof.
13.13. Further Assurances. The parties hereto from time to time after
execution of this Agreement, without further consideration, shall execute and
deliver, as appropriate, such documents and take such actions as may be
reasonably necessary or proper to carry out and consummate the transactions
contemplated by this Agreement.
13.14. Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction; provided, however, that the foregoing
shall not be construed as prohibiting any party from pursuing any other rights
and remedies available to it for such breach or threatened breach.
13.15. Force Majeure. Neither party shall be liable for defaults or
delays due to acts of God or the public enemy, acts or demands of government or
any government agency, strikes, fires, flood, accident, or other unforeseeable
causes beyond its control and not due to its fault or negligence. Any party
desiring to excuse its default or delay for any such reason shall notify the
other party of the cause of such default or delay within five (5) days after the
beginning thereof.
13.16. Brokers and Finders. Each of the parties represents and warrants
that neither it nor any of its officers, directors, employees, or Affiliates has
employed any broker or finder or incurred any Liability for any financial
advisory fees, brokerage fees, commissions, or finders' fees in connection with
this Agreement or the transactions contemplated hereby. In the event of a claim
by any broker or finder based upon his or its representing or being retained by
or allegedly representing or being retained by any party,
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such party agrees to indemnify and hold each other party harmless of and from
any Liability in respect of such claim.
13.17. Relationship of Parties. Nothing contained in this Agreement
shall be construed as constituting a partnership or agency relationship between
the parties hereto. On and after the Closing Date, the relationship of the
parties one to another for all purposes shall be that of independent members of
a limited liability company.
[Signature Pages Follow]
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IN WITNESS WHEREOF the undersigned hereto execute this Agreement.
"SNAP-ON"
SNAP-ON INCORPORATED:
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Chief Financial Officer
Snap-on Incorporated
"NEWCOURT"
NEWCOURT FINANCIAL USA INC.:
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Executive Vice President
Newcourt Financial USA Inc.
AGREEMENT RESPECTING A LIMITED LIABILITY COMPANY
DESCRIPTION OF ATTACHMENTS+
Exhibits:
Exhibit A Definitional Supplement
Exhibit 4.02(c) Form of Operating Agreement
Exhibit 5.04 Form of Snap-on License and Royalty Agreement
Exhibit 6.03 Funding Term Sheet
Schedules:
Schedule 1.01 Newcourt Trademarks and Processing Systems
Schedule 1.02 Newcourt Organization; Jurisdiction
Schedule 2.01 Snap-on Trademarks
Schedule 2.05(a) Snap-on Entity Regulatory/Third Party Consents
Schedule 2.05(b) Snap-on Regulatory/Third Party Consents
Schedule 2.08 Material Litigation
Schedule 2.09 Material Contracts
Schedule 4.01(a) Program Rights Agreement
Schedule 5.01 Regulatory Approvals
--------
+ The exhibits and schedules to this document are not being filed
herewith. The registrant agrees to furnish supplementally a copy of any such
schedule or exhibit to the Securities and Exchange Commission upon request.
