[Execution Copy]
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT ("Agreement") is executed as of this 6th
day of October, 1995 by SNAP-ON INCORPORATED, a Delaware corporation (the
"Parent"), in favor of CORPORATE ASSET FUNDING COMPANY, INC., a Delaware
corporation ("Investor"), CITIBANK, N.A., a national banking association
("Citibank") and CITICORP NORTH AMERICA, INC., a Delaware corporation, as
agent under the Investor Agreement and the Parallel Purchase Agreement (in
each case, as defined below) (the "Agent") (the Investor, Citibank and
their its respective successors and assigns, including without limitation,
the "Owners" under and as defined in the Investor Agreement referred to
below and the "Banks" under and as defined in the Parallel Purchase
Agreement referred to below, are referred to herein as the "Purchase
Parties").
PRELIMINARY STATEMENTS
1. Snap-on Credit Corporation, a Wisconsin corporation (the
"Seller"), the Investor and the Agent have executed that certain
Receivables Purchase and Sale Agreement of even date herewith (the
"Investor Agreement) pursuant to which the Investor and its assigns may,
from time to time, purchase interests in Receivables from the Seller.
2. The Seller, Citibank and the Agent and the Seller have
executed that certain Receivables Purchase and Sale Agreement of even date
herewith (the "Parallel Purchase Agreement") pursuant to which the
Citibank and its assigns may, from time to time, purchase interests in
Receivables from the Seller.
3. The Parent is the owner, directly or indirectly, of 100% of
the capital stock of the Seller.
4. It is a condition precedent to the initial purchase by any
of the Purchase Parties under the Investor Agreement or the Parallel
Purchase Agreement, as applicable, that the Parent execute this Agreement
and deliver it to the Investor, Citibank and the Agent.
In consideration of the execution of the Investor Agreement and
the Parallel Purchase Agreement by the Investor, the Banks and the Agent,
and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged by the Parent, the Parent agrees as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this
Agreement, all defined terms used in this Agreement, including the
Preliminary Statements hereof, shall have the meanings ascribed to such
terms in the Investor Agreement and the Parallel Purchase Agreement.
ARTICLE II
PERFORMANCE SUPPORT OBLIGATION
Section 2.01. Performance Support Obligation. The Parent
hereby unconditionally and irrevocably guarantees for the benefit of each
of the Purchase Parties and the Agent, the due and punctual performance,
observance and payment by the Seller and its respective successors and
assigns of all of the terms, covenants, conditions, agreements,
undertakings and obligations on the part of the Seller (whether
individually or as Collection Agent or otherwise) to be paid, performed or
observed under the Investor Agreement, the Parallel Purchase Agreement, or
any document delivered in connection with the Investor Agreement or the
Parallel Purchase Agreement in accordance with the terms thereof, includ-
ing, without limitation, any agreement of the Seller to pay any money
under either the Investor Agreement, the Parallel Purchase Agreement, or
any such other document (all such terms, covenants, conditions,
agreements, undertakings and obligations on the part of the Seller to be
paid, performed or observed being collectively called the "Seller Obliga-
tions"). In the event that the Seller shall fail in any manner whatsoever
to perform, observe, or pay any of the Seller Obligations when the same
shall be required to be performed, observed or paid under the Investor
Agreement, the Parallel Purchase Agreement or any such other document,
then the Parent will itself duly and punctually perform, observe and pay,
or cause to be duly and punctually performed, observed or paid the Seller
Obligations, and it shall not be a condition to the accrual of the obliga-
tion of the Parent hereunder to perform, observe or pay any Seller
Obligation (or to cause the same to be performed, observed or paid) that
any Purchase Party or the Agent shall have first made any request of or
demand upon or given any notice to the Parent or to the Seller or its
respective successors and assigns or have initiated any action or
proceeding against the Parent or the Seller or any of their respective
successors and assigns in respect thereof. Any Purchase Party, the Agent
or any of them may proceed to enforce the obligations of the Parent under
this Section 2.01 without first pursuing or exhausting any right or remedy
which any Purchase Party or the Agent may have against the Seller, any
other Person, the Receivables or any other property.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of
the Parent. The Parent hereby represents and warrants as follows:
(a) The Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and is duly qualified to do business, and in good
standing, in every jurisdiction where the nature of its business
requires it to be so qualified, except to the extent that the
failure to be so qualified to do business or in good standing in
any jurisdiction would not, when taken together with all similar
failures, materially adversely affect the financial condition or
operations of the Parent.
(b) The execution, delivery and performance by the Parent
of this Agreement and the other instruments and documents to be
delivered hereunder, and the transactions contemplated hereby,
are within the Parent's corporate powers, have been duly
authorized by all necessary corporate action, do not contravene
(i) the Parent's charter or by-laws, (ii) any law, rule or
regulation applicable to the Parent, other than such laws, rules
or regulations the contravention of which would not, on an
aggregate basis, materially adversely affect the financial
condition or operations of the Parent, (iii) any contractual
restriction contained in any indenture, loan or credit
agreement, lease, mortgage, security agreement, bond, note or
other agreement or instrument binding on the Parent or its
property or (iv) any order, writ, judgment, award, injunction or
decree binding on the Parent or its property, and do not result
in or require the creation of any Adverse Claim upon or with
respect to any of its properties.
(c) This Agreement has been duly executed and delivered on
behalf of the Parent and is the legal, valid and binding
agreement of the Parent enforceable against the Parent in
accordance with its terms.
(d) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Parent of this Agreement or any other
document or instrument to be delivered by the Parent herewith.
(e) There are no actions, suits, or proceedings pending
or, to the knowledge of the Parent, threatened against or
affecting the Parent or any of its Subsidiaries, or the property
of the Parent or any of its Subsidiaries in any court, or before
any arbitrator of any kind, or before or by any governmental
body, which can reasonably be expected to materially adversely
affect either the financial condition or operations of the
Parent or the Parent and its Subsidiaries taken as a whole or
the ability of the Parent to perform its obligations hereunder.
Neither the Parent nor any of its Subsidiaries is in default
with respect to any order of any court, arbitrator or
governmental body, except for defaults with respect to orders of
courts, arbitrators and governmental bodies which defaults are
not material to the business or operations of the Parent and its
Subsidiaries taken as a whole.
(f) The consolidated balance sheets of the Parent and its
consolidated Subsidiaries as of December 31, 1994, and the
related consolidated statements of shareholders equity and cash
flows of the Parent and its consolidated Subsidiaries for the
fiscal year then ended, in each case certified by Xxxxxx
Xxxxxxxx XX, independent public accountants, copies of which
have been furnished to the Agent, fairly present the xxxxxxx-
dated financial condition of the Parent and its consolidated
Subsidiaries at such date and the consolidated results of the
operations of the Parent and its consolidated Subsidiaries for
the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied. Since
December 31, 1994, there has been no material adverse change in
such condition or operations.
(g) The Parent is the direct or indirect owner of 100% of
each class of the issued and outstanding capital stock of the
Seller.
Section 3.02. Continuing Nature of Representations and
Warranties. The Parent hereby covenants and agrees that on each day from
the date hereof until this Agreement is terminated pursuant to
Section 5.07 hereof, the representations and warranties contained in
Section 3.01 shall be true and correct as if made on each such day.
ARTICLE IV
COVENANTS
SECTION 4.01. Reporting Covenants. The Parent covenants and
agrees that, until this Agreement is terminated pursuant to Section 5.07,
the Parent will (unless any of the following is delivered to the Agent
pursuant to the Investor Agreement or the Parallel Purchase Agreement)
deliver to the Agent:
(a) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Parent, consolidated balance sheets of the Parent and its consolidated
Subsidiaries as of the end of such quarter, and the related consolidated
statements of cash flows and consolidated statements of changes in
financial position of the Parent and its consolidated Subsidiaries each
for the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, certified by the chief financial
officer or chief accounting officer of the Parent;
(b) as soon as available and in any event within 120 days after
the end of each fiscal year of the Parent, a copy of the consolidated
balance sheets of the Parent and its consolidated Subsidiaries as of the
end of such year and the related consolidated statements of cash flows and
consolidated statements of changes in financial position of the Parent and
its consolidated Subsidiaries for such year each reported on by nationally
recognized independent public accountants acceptable to the Agent, all in
reasonable detail and certified without adverse opinion or disclaimer by
nationally recognized independent public accountants acceptable to the
Agent, whose certificate shall be in conformity with generally accepted
accounting principles;
(c) promptly after the sending or filing thereof, copies of all
reports which the Parent sends to any of its security holders and copies
of all reports and other documents which the Parent files with the
Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934, as amended, and, to the extent requested by the Agent, copies of
such other reports and registration statements as the Parent may file with
the Securities and Exchange Commission or any national securities
exchange; and
(d) promptly from time to time furnish the Agent such
information, documents, records or reports respecting the conditions and
operations, financial or otherwise, of the Parent or any Subsidiary of the
Parent as the Agent may reasonably request from time to time to protect
the interests of the Agent, CNAI, the Banks and the Owners under and as
contemplated by this Agreement.
SECTION 4.02. Stock Ownership and Merger Restrictions. The
Parent covenants and agrees that, until this Agreement is terminated
pursuant to Section 5.07, the Parent will continue to be the beneficial
owner, whether directly or indirectly, of 100% of each class of the issued
and outstanding capital stock of the Seller. The Parent shall not merge
or consolidate with any Person unless the Parent shall be the surviving
entity of any such merger or consolidation.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Validity of Obligations. The Parent agrees that
its obligations under this Agreement shall be unconditional, irrespective
of, without limitation, (a) the validity, enforceability, avoidance,
subordination, discharge, or disaffirmance by any Person (including a
trustee in bankruptcy) of the Seller Obligations, any Receivable, the
Investor Agreement or the Parallel Purchase Agreement, (b) the absence of
any attempt to collect any Receivables from the Obligor related thereto or
any guarantor, or to collect the Seller Obligations from the Seller or any
other Person, (c) the waiver, consent extension, forbearance or granting
of any indulgence by any of the Purchase Parties or the Agent with respect
to any provision of any instrument evidencing the Seller Obligations or
any Receivable, (d) any change of the time, manner or place of performance
of, or in any other term of any of the Seller Obligations or any
Receivable, including without limitation, any amendment to or modification
of the Investor Agreement or the Parallel Purchase Agreement, (e) any law,
regulation or order of any jurisdiction affecting any term of any of the
Seller Obligations, any Receivable, or rights of any of the Purchase
Parties or the Agent with respect thereto, (f) the failure by any of the
Purchase Parties or the Agent to take any steps to perfect and maintain
perfected its respective interest in any Receivable or other property
acquired by any of the Purchase Parties from the Seller or in any security
or collateral related to the Seller Obligations, (g) any exchange or
release of any Receivable or other property acquired by the Purchase
Parties from the Seller, (h) any failure to obtain any authorization or
approval from or other action by or to notify or file with, any
governmental authority or regulatory body required in connection with the
performance of the obligations hereunder by the Parent or (i) any impossi-
bility or impracticability of performance, illegality, force majeure, any
act of government, or other similar circumstance which might constitute a
defense available to, or a discharge of the Seller or the Parent. The
Parent further agrees that its obligations under this Agreement shall not
be limited by any valuation, estimation or disallowance made in connection
with any proceedings involving the Seller filed under the United States
Bankruptcy Code, as amended ("Code"), whether pursuant to Section 502 of
the Code or any other Section thereof. The Parent further agrees that
none of the Purchase Parties or the Agent shall be under any obligation to
xxxxxxxx any assets in favor of or against or in payment of any or all of
the Seller Obligations. The Parent further agrees that, to the extent
that the Seller makes a payment or payments to any of the Purchase Parties
or the Agent, which payment or payments (or any part thereof) are
subsequently invalidated, declared to be fraudulent or preferential, set
aside and/or required to be repaid to the Seller, its estate, trustee or
receiver or any other party, including, without limitation, the Parent,
under any bankruptcy law, state or federal law, common law or equitable
cause, then to the extent of such payment or repayment, the Seller Obliga-
tion or part thereof which had been paid, reduced or satisfied by such
amount shall be reinstated and continued in full force and effect as of
the date such initial payment, reduction or satisfaction occurred. The
Parent waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor and
notices of acceptance of this Agreement. The Parent shall perform its
obligations under and as contemplated by this Agreement without set-off or
counterclaim, any such claims to be pursued independently of the Parent's
performance hereunder. The Parent's obligations under this Agreement
shall not be limited if the Purchase Parties or the Agent are precluded
for any reason (including without limitation, the application of the
automatic stay under Section 362 of the Code) from enforcing or exercising
any right or remedy with respect to the Seller Obligations, and the Parent
shall pay to the Purchase Parties and the Agent, upon demand, the amount
of the Seller Obligations that would otherwise have been due and payable
had such rights and remedies been permitted to be exercised.
SECTION 5.02. Irrevocability. The Parent agrees that its
obligations under this Agreement shall be irrevocable. In the event that
under applicable law (notwithstanding the Parent's agreement regarding the
irrevocable nature of its obligations hereunder), the Parent shall have
the right to revoke this Agreement, this Agreement shall continue in full
force and effect until a written revocation hereof specifically referring
hereto, signed by the Parent is actually received by the Agent at Agent's
address at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000. Any such
revocation shall not affect the right of any of the Purchase Parties or
the Agent to enforce their respective rights under this Agreement with
respect to (a) any Seller Obligation (including any Seller Obligation that
is contingent or unmatured) which arose on or prior to the date the
aforementioned revocation was received by the Agent or (b) any Receivable
which was a Pool Receivable on the date the aforementioned revocation was
received by the Agent. If any of the Purchase Parties acquire Receivables
or take other action in reliance on this Agreement after any such revoca-
tion by the Parent but prior to the receipt by the Agent of said written
notice, the rights of the Purchase Parties and the Agent with respect
thereto shall be the same as if such revocation had not occurred. Without
limiting the foregoing, this Agreement may not be revoked at any time on
or after the Termination Date.
SECTION 5.03. Waiver. The Parent hereby waives promptness,
diligence, notice of acceptance, notice of default by the Seller, notice
of the incurrence of any Seller Obligation and any other notice with
respect to any of the Seller Obligations, this Agreement, the Investor
Agreement, the Parallel Purchase Agreement and any other document related
to any of the foregoing and any requirement that the Purchase Parties or
the Agent exhaust any right or take any action against the Seller, any
other Person or any property. The Parent warrants to the Purchase Parties
and the Agent that it has adequate means to obtain from the Seller on a
continuing basis, all information concerning the financial condition of
the Seller and the collectibility of the Receivables, and that it is not
relying on the Purchase Parties or the Agent to provide such information
either now or in the future.
SECTION 5.04. Waiver of Subrogation. The Parent hereby waives
any and all rights against the Seller which it may acquire by way of
subrogation under this Agreement.
SECTION 5.05. Costs and Expenses. The Parent shall pay all
reasonable costs and expenses including, without limitation, all court
costs and attorneys' and paralegals' fees and expenses paid or incurred by
any of the Purchase Parties or the Agent in connection with (a) the
enforcement of any term or provision of this Agreement or (b) the prosecu-
tion or defense of any action by or against any of the Purchase Parties or
the Agent in connection with this Agreement, the Investor Agreement or the
Parallel Purchase Agreement, whether involving the Seller, the Parent or
any other Person, including, without limitation, a trustee in bankruptcy.
The Parent shall pay interest on all amounts owing by it under this
Agreement from the date of demand therefor until such obligations are paid
in full, at the per annum rate of 2% plus the Alternate Base Rate.
SECTION 5.06. Successors. This Agreement shall be binding upon
the Parent and upon the successors and assigns of the Parent and shall
inure to the benefit of the successors and assigns of the Purchase Parties
and the Agent; all references herein to the Parent and to the Seller shall
be deemed to include their respective successors and assigns. The
successors and assigns of the Seller shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for the Seller. All
references to the singular shall be deemed to include the plural where the
context so requires.
SECTION 5.07. Termination. This Agreement shall terminate
after the latest to occur of (a) the date on which all the Seller
Obligations are paid and/or performed in full, (b) the Termination Date
under the Investor Agreement, (c) the Termination Date under the Parallel
Purchase Agreement and (d) the date on which the Parent has satisfied in
full its obligations hereunder.
SECTION 5.08. Integration; Conditions. This Agreement contains
a final and complete integration of all prior expressions of the parties
hereto with respect to the subject matter hereof, superseding all prior
oral or written understandings. No course of dealing, course of
performance or trade usage and no parol evidence shall be used to supple-
ment or modify any term hereof. This Agreement is fully effective on the
date of its execution by the Parent.
SECTION 5.09. Notices, Etc. All notices and other
communications provided for hereunder shall, unless otherwise stated
herein, be in writing (including telex communication and communication by
facsimile copy) and mailed, telexed, transmitted or otherwise delivered,
as to each party hereto, at its address set forth under its name on the
signature pages hereof or at such other address as shall be designated by
such party in a written notice to the other parties hereto. Except as
otherwise specified in the Agreement, all such notices and communications
shall be effective, upon receipt, or in the case of delivery by mail, five
days after being deposited in the United States mails, or, in the case
of notice by telex, when telexed against receipt of answer back, or in
the case of notice by facsimile copy, when verbal communication of
receipt is obtained, or in the case of delivery by commercial overnight
courier, one Business Day after being deposited with such courier for
next Business Day delivery, in each case addressed as aforesaid.
SECTION 5.10. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS
AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND REMEDIES OF THE PARTIES
HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS (AS
OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NEW YORK. THE
PARENT HEREBY AGREES TO THE JURISDICTION OF ANY FEDERAL COURT LOCATED
WITHIN THE STATE OF NEW YORK. THE PARENT HEREBY WAIVES ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE BETWEEN THE PARENT AND THE PURCHASER OR THE AGENT
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY
DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A
JURY. THE PARENT HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER
AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION 5.10 SHALL
AFFECT THE RIGHT OF THE PURCHASER OR THE AGENT TO BRING ANY ACTION OR
PROCEEDING AGAINST THE PARENT OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION.
SECTION 5.11 Severability. Wherever possible, each provision
of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions
of this Agreement.
SECTION 5.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
Parent this 6th day of October, 1995.
SNAP-ON INCORPORATED
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Senior Vice President-
Finance and Chief
Financial Officer
0000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Acknowledged and accepted
this 6th day of October, 1995.
CORPORATE ASSET FUNDING COMPANY, INC.
Citicorp North America, Inc. as
Attorney-in-fact
By /s/ Xxxxxxx Xxxxx
Vice President
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Corporate Asset
Funding Department
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
CITIBANK, N.A.
By /s/ Xxxxxxx Xxxxx
Vice President
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Corporate Asset
Funding Department
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
CITICORP NORTH AMERICA, INC.,
as Agent
By /s/ Xxxxxxx Xxxxx
Vice President
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Corporate Asset
Funding Department
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000