EXHIBIT 4.11
RECEIVABLES PURCHASE AGREEMENT
between
UNOVA, INC.
as Seller
and
KCH FUNDING, L.L.C.
as Purchaser
Dated as of June 18, 1999
RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT, dated as of June 18, 1999
(as amended, supplemented or otherwise modified and in effect from time to time,
this "AGREEMENT"), between UNOVA, INC., a Delaware corporation, as seller (the
"SELLER") and KCH FUNDING, L.L.C., a Delaware limited liability company, as
purchaser (the "PURCHASER").
W I T N E S S E T H :
WHEREAS, the Purchaser desires to purchase from the Seller
from time to time certain accounts receivable owing from Obligors which are
purchased from the divisions listed on Annex 1 hereto of UNOVA Industrial
Automation Systems, Inc., a Delaware corporation ("IAS") (as Annex 1 may from
time to time be amended by the written agreement of the parties hereto) and
Intermec Technologies Corporation, a Washington corporation ("INTERMEC,"
together with such divisions of IAS, collectively, the "ORIGINATOR
SUBSIDIARIES") and which are generated in the normal course of the Originator
Subsidiaries' business pursuant to, or evidenced by, purchase orders, invoices
or other written agreements or with invoices on open accounts;
WHEREAS, the Seller desires to sell and assign from time to
time such certain accounts receivable to the Purchaser upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed by
and between the Purchaser and the Seller as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. All capitalized terms used herein shall have the
meanings specified herein or, if not so specified, the meaning specified in,
or incorporated by reference into, the Transfer Agreement, and shall include
in the singular number the plural and in the plural number the singular:
"ADVANCE" shall have the meaning specified in Section 3.2(a).
"ELIGIBLE RECEIVABLE" means, at any time, any Receivable:
(i) which has been originated by an Originator
Subsidiary and with respect to which the Seller, immediately
prior to the transfer hereunder, has good title, free and
clear of all Adverse Claims;
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(ii) the Obligor of which is a United States
resident at the time of the initial creation of an interest
therein hereunder, is not an Affiliate or employee of any of
the parties hereto, and is not a government or a governmental
subdivision or agency;
(iii) which is not a Defaulted Receivable at the
time of the initial creation of an interest therein hereunder;
(iv) which is not a Delinquent Receivable at the
time of the initial creation of an interest therein hereunder,
provided that, for the initial purchase only, the term
"Eligible Receivable" shall be deemed not to include this
clause;
(v) which, (A) arises pursuant to a Contract
with respect to which the Seller and the applicable Originator
Subsidiary has performed all obligations required to be
performed by it thereunder, including without limitation
shipment of the merchandise and/or the performance of the
services purchased thereunder; (B) has been billed; and (C)
according to the Contract related thereto, is required to be
paid in full within sixty (60) days of the original invoice
date therefor;
(vi) which is an "eligible asset" as defined in
Rule 3a-7 under the Investment Company Act of 1940, as
amended;
(vii) a purchase of which with the proceeds of
Commercial Paper would constitute a "current transaction"
within the meaning of Section 3(a)(3) of the Securities Act of
1933, as amended;
(viii) which is an "account" or "chattel paper" and
is not evidenced by instruments within the meaning of Article
9 of the UCC of all applicable jurisdictions;
(ix) which is denominated and payable only in
United States dollars in the United States;
(x) which, arises under a Contract that together
with such Receivable, is in full force and effect and
constitutes the legal, valid and binding obligation of the
related Obligor enforceable against such Obligor in accordance
with its terms and is not subject to any litigation, dispute,
offset, counterclaim or other defense;
(xi) which, together with the Contract related
thereto, does not contravene in any material respect any laws,
rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to truth in
lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and
privacy) and with respect to which no part of the Contract
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related thereto is in violation of any such law, rule or
regulation in any material respect;
(xii) which (A) satisfies all applicable
requirements of the applicable Credit and Collection Policy,
and (B) is assignable without the consent of, or notice (which
has not been given) to, the Obligor thereunder;
(xiii) which was generated in the ordinary course
of the applicable Originator Subsidiary's business;
(xiv) the Obligor of which has been directed to
make all payments to a specified account of the Servicer with
respect to which there shall be a Lock-Box Agreement in
effect, except as permitted pursuant to Section 4.1(n) of the
Transfer Agreement;
(xv) [Reserved]
(xvi) the assignment of which under this Agreement
by the Seller to the Purchaser does not violate, conflict or
contravene any applicable laws, rules, regulations, orders or
writs or any contractual or other restriction, limitation or
encumbrance;
(xvii) except as permitted by Section 6.2(a) of the
Transfer Agreement, which has not been compromised, adjusted
or modified (including by the extension of time for payment or
the granting of any discounts, allowances or credits);
provided, however, that only such portion of such Receivable
that is the subject of such compromise, adjustment or
modification shall be deemed to be ineligible pursuant to the
terms of this clause (xvii); and
(xviii) which is not a Receivable originated by the
Cincinnati Machine Division of UNOVA Industrial Automation
Systems, Inc. until such time as the Purchaser and the Seller
shall have mutually agreed in writing that this clause is no
longer effective.
"ORIGINATOR SUBSIDIARY" shall have the meaning set forth in
the recitals hereto.
"PURCHASE PERCENTAGE" shall mean for any day the fair market
value discount rate as mutually agreed between the Purchaser and the Seller for
each month during the term hereof (the application of such rate to result in a
Purchase Price which constitutes fair consideration and approximate fair market
value for the Receivables and related property then conveyed hereunder
reasonably approximate to an arms length transaction between unaffiliated
parties as determined by the Purchaser and the Seller) or, in the absence of
such agreement for such month, the quotient (expressed as a percentage) of (a)
one DIVIDED by (b) the sum of (i) one, plus (ii) the product of (A) the prime
rate (as announced by NationsBank, N.A.) on such date and (B) a fraction, the
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numerator of which is the average scheduled number of days to maturity for such
Receivables pursuant to the related Contracts, and the denominator of which is
365.
"PURCHASE DATE" means each day on which the Seller sells and
Purchaser purchases any Receivables hereunder.
"PURCHASE PRICE" shall have the meaning set forth in Section
3.1 hereof.
"PURCHASER" means KCH Funding, L.L.C., a Delaware limited
liability company, and its successors and assigns.
"RECEIVABLE" means the indebtedness, obligation or liability
owed to the Seller or any Originator Subsidiary by any Obligor under a Contract,
whether constituting an account, chattel paper, instrument, investment property
or general intangible, arising in connection with the sale or lease of
merchandise or the rendering of services by the applicable Originator Subsidiary
and includes the right to payment of any Finance Charges and other obligations
of such Obligor with respect thereto; PROVIDED, HOWEVER, that only Receivables
of IAS which are generated from the divisions listed on Annex 1 hereto (as such
annex may be modified from time to time by the written agreement of the parties
hereto), shall be included within the scope of this Agreement and all other
receivables generated from other divisions of IAS are excluded hereunder.
Notwithstanding the foregoing, once a Receivable has been repurchased pursuant
to Section 6.1 hereof, it shall no longer constitute a Receivable hereunder.
"RELATED SECURITY" means with respect to any Receivable, all
of the Seller's rights, title and interest in, to and under:
(i) the merchandise (including returned or
repossessed merchandise), if any, the sale of which by an
Originator Subsidiary gave rise to such Receivable;
(ii) all other security interests or liens and
property subject thereto from time to time, if any, purporting
to secure payment of such Receivable, whether pursuant to the
Contract related to such Receivable or otherwise, together
with all financing statements signed by an Obligor describing
any collateral securing such Receivable;
(iii) all guarantees, indemnities, warranties,
insurance (and proceeds and premium refunds thereof) or other
agreements or arrangements of any kind from time to time
supporting or securing payment of such Receivable whether
pursuant to the Contract related to such Receivable or
otherwise;
(iv) all Records related to such Receivable;
(v) all Lock-Box Accounts and Lock-Box
Agreements; and
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(vi) all Proceeds of any of the foregoing.
"RELEVANT UCC" shall mean the Uniform Commercial Code as in
effect in the States of New York and California.
"SELLER" shall mean UNOVA, Inc., a Delaware corporation, and
its successors and assigns.
"TRANSFER AGREEMENT" shall mean the Transfer and
Administration Agreement, dated as of June 18, 1999, by and among the Purchaser,
the Seller, the Servicer, the Company and the Agent, as such agreement may be
amended, modified or supplemented from time to time.
SECTION 1.2. OTHER TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles. All terms used in Article 9 of the Relevant UCC,
and not specifically defined herein, are used herein as defined in such Article
9.
SECTION 1.3. COMPUTATION OF TIME PERIODS. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding."
ARTICLE II
PURCHASE, CONVEYANCE AND SERVICING OF RECEIVABLES
SECTION 2.1. SALE.
(a) Upon the terms and subject to the conditions set
forth herein, the Seller hereby agrees to sell, convey, transfer and assign to
the Purchaser, and the Purchaser hereby agrees to purchase and accept such
conveyance, transfer and assignment from the Seller, on the terms and subject to
the conditions specifically set forth herein, of all of the Seller's right,
title and interest, whether now owned or hereafter acquired, in, to and under
certain Receivables and the Related Security, Collections and proceeds relating
thereto, provided that the Termination Date has not occurred. Any such foregoing
sale, assignment, transfer and conveyance does not constitute an assumption by
the Purchaser of any obligations of the Seller or any other Person to Obligors
or to any other Person in connection with such Receivables and the Related
Security, Collections and proceeds relating thereto or other agreement and
instrument relating thereto. The parties hereto shall execute a transfer
certificate in the form of Exhibit A attached hereto.
(b) In connection with any such foregoing sale, the
Seller agrees to record and file on or prior to the Closing Date, at its own
expense, a financing statement or statements with respect to the Receivables and
the other property described in Section 2.1(a) sold and to be sold by the Seller
hereunder meeting the requirements of applicable state law in such manner and in
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such jurisdictions as are necessary to perfect and protect the interests of the
Purchaser created hereby under the Relevant UCC (subject, in the case of Related
Security constituting returned inventory, to the applicable provisions of
Section 9-306 of the Relevant UCC) against all creditors of and purchasers from
the Seller, and to deliver either the originals of such financing statements or
a file-stamped copy of such financing statements or other evidence of such
filings to the Purchaser on the Closing Date.
(c) The Seller agrees that from time to time, at its
expense, it will promptly execute and deliver all instruments and documents and
take all actions as may be necessary or as the Purchaser may reasonably request
in order to perfect or protect the interest of the Purchaser in the Receivables
and other property purchased hereunder or to enable the Purchaser to exercise or
enforce any of its rights hereunder. Without limiting the foregoing, the Seller
will, in order to accurately reflect any purchase and sale transaction, execute
and file such financing or continuation statements or amendments thereto or
assignments thereof (as permitted pursuant hereto) as may be reasonably
requested by the Purchaser, and upon the request of the Purchaser, xxxx its aged
trial balances computerized records with a legend describing the purchase by the
Purchaser of Receivables and the subsequent transfer thereof to the Company
pursuant to the Transfer Agreement and stating "An interest in these accounts
receivable has been conveyed to the Company pursuant to a Transfer and
Administration Agreement dated as of June 18, 1999." The Seller shall, upon the
reasonable request of the Purchaser, obtain such additional search reports as
the Purchaser shall request. To the fullest extent permitted by applicable law,
the Purchaser shall be permitted to sign and file continuation statements and
amendments thereto and assignments thereof without the Seller's signature.
Carbon, photographic or other reproduction of this Agreement or any financing
statement shall be sufficient as a financing statement.
(d) It is the express intent of the Seller and the
Purchaser that the transactions contemplated hereby shall be a purchase by the
Purchaser and a sale by the Seller of Receivables and any conveyance of
Receivables by the Seller to the Purchaser pursuant to this Agreement be
construed as a sale of such Receivables by the Seller to the Purchaser. Further,
it is not the intention of the Seller and the Purchaser that such conveyance be
deemed a grant of a security interest in any Receivables by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in case
that, notwithstanding the intent of the parties, any Receivables conveyed
hereunder are construed to constitute property of the Seller, then (i) this
Agreement also shall be deemed to be, and hereby is, a security agreement within
the meaning of the Relevant UCC; and (ii) the conveyance by the Seller provided
for in this Agreement shall be deemed to be, and the Seller hereby grants to the
Purchaser, a security interest in, to and under all of the Seller's right, title
and interest in, to and under all Receivables conveyed by the Seller to the
Purchaser, to secure the rights of the Purchaser set forth in this Agreement or
as may be determined in connection therewith by applicable law. The Seller and
the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in, and not a sale of, Receivables, such security
interest would be deemed to be a perfected security interest in favor of the
Purchaser under applicable law and will be maintained as such throughout the
term of this Agreement.
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SECTION 2.2. SERVICING OF RECEIVABLES. The servicing,
administering and collection of the Receivables conveyed hereunder shall be
conducted by the Servicer as set forth and in accordance with the Transfer
Agreement. The Purchaser hereby appoints the Servicer as its agent to enforce
the Purchaser's rights and interests in, to and under the Receivables, the
Related Security, Collections and proceeds with respect thereto.
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ARTICLE III
CONSIDERATION AND PAYMENT; RECEIVABLES
SECTION 3.1. PURCHASE PRICE.
(a) The purchase price for any Receivable and related
property conveyed, transferred and assigned to the Purchaser by the Seller under
this Agreement shall be a dollar amount equal to the product of (i) the
aggregate outstanding balance of the Receivables sold pursuant to such
conveyance, and (ii) the Purchase Percentage at such time (the "PURCHASE
PRICE").
SECTION 3.2. PAYMENT OF PURCHASE PRICE.
(a) The Purchase Price for any Receivables and related
property conveyed hereunder shall be paid in the following manner: (i) by
payment of cash in immediately available funds, or (ii) with the consent of the
Seller, capital contributed by the Seller to Purchaser in the form of a
contribution of the additional Receivables or (iii) any combination of the
foregoing.
SECTION 3.3. MONTHLY REPORT. On or before the fifteenth (15th)
Business Day of each fiscal month, the Seller shall prepare or cause to be
prepared and forward to the Purchaser (i) an Investor Report as of the end of
the last day of the immediately preceding fiscal month, (ii) if requested by the
Purchaser, a listing by Obligor of all Receivables together with an aging of
such Receivables and (iii) such other information pertaining to the Receivables
or the transactions hereunder as the Purchaser may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. SELLER'S REPRESENTATIONS AND WARRANTIES. On the Closing Date
and on each Purchase Date, the Seller represents and warrants to the
Purchaser that:
(a) CORPORATE EXISTENCE AND POWER. The Seller is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all corporate power and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business in each jurisdiction in which its business is now conducted and
the Seller is duly qualified to do business in, and is in good standing in,
every other jurisdiction in which the nature of its business requires it to be
so qualified, except where the failure to have such items or to be so qualified
or in good standing would not have a material adverse effect on the ability of
the Seller to perform its obligations hereunder.
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(b) CORPORATE AND GOVERNMENTAL AUTHORIZATION;
CONTRAVENTION. The execution, delivery and performance by the Seller of this
Agreement is within the Seller's corporate powers, have been duly authorized by
all necessary corporate action, require no action by or in respect of, or filing
with, any Official Body or official thereof (except as contemplated hereby or by
the Transfer Agreement), and do not contravene, or constitute a default under,
any provision of applicable law, rule or regulation or of the certificate of
incorporation of the Seller or of any agreement, judgment, injunction, order,
writ, decree or other instrument binding upon the Seller or result in the
creation or imposition of any Adverse Claim on the assets of the Seller or any
of its Subsidiaries, except where such failure would not have a material adverse
effect on the ability of the Seller to perform its obligations hereunder.
(c) BINDING EFFECT. This Agreement has been duly executed
and delivered and constitutes the legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws affecting
the rights of creditors generally.
(d) PERFECTION OF SALE. Immediately preceding each sale
hereunder, the Seller shall be the legal and beneficial owner of all of the
Receivables and the Related Security and Collections to be sold hereunder, free
and clear of all Adverse Claims. On or prior to each sale hereunder, all
financing statements and other documents required to be recorded or filed under
the UCC in order to perfect and protect the interest of the Purchaser in the
Receivables against all creditors of and purchasers from the Seller or any
Originator Subsidiary will have been duly filed in each filing office necessary
for such purpose and all filing fees and taxes, if any, payable in connection
with such filings shall have been paid in full.
(e) ACCURACY OF INFORMATION. All information heretofore
furnished by the Seller or any Originator Subsidiary (including without
limitation, the Investor Reports, any reports delivered pursuant to Section 2.10
of the Transfer Agreement and the Seller's financial statements) for purposes of
or in connection with this Agreement or any transaction contemplated hereby is,
and all such information hereafter furnished by the Seller to the Purchaser or
to any party pursuant to the Transfer Agreement will be complete and accurate as
of such date in every material respect, and neither the Seller nor any
Originator Subsidiary has omitted to disclose any information which is material
to the transaction, on the date such information is stated or certified.
(f) TAX STATUS. The Seller has filed all tax returns
(federal, state and local) required to be filed and has paid or made adequate
provision for the payment of all taxes and assessments due pursuant to such
returns or pursuant to any assessment received in respect thereof, and other
governmental charges payable by it other than any such filings or payments which
the failure to make or pay would not have a material adverse effect on the
ability of the Seller to perform its obligations hereunder.
(g) ACTION, SUITS. There are no actions, suits or
proceedings pending, or to the knowledge of the Seller threatened, against or
affecting the Seller or any Originator Subsidiary of
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the Seller or their respective properties, in or before any court, arbitrator
or other body which could reasonably be expected to have a material adverse
effect on the ability of the Seller to perform its obligations hereunder; the
Seller is not in violation of any material order of any court, arbitrator or
Official Body.
(h) USE OF PROCEEDS. No proceeds of any sale hereunder
will be used by the Seller to acquire any security in any transaction which is
subject to Section 12 of the Securities Exchange Act of 1934, as amended or for
any purpose that violates any applicable law, rule or regulation, including
Regulation U of the Federal Reserve Board.
(i) PLACE OF BUSINESS. The principal place of business
and chief executive office (as such terms are defined in the UCC) of the Seller
are located at the address of the Seller indicated in Section 9.3 hereof and the
offices where the Seller and each Originator Subsidiary keeps all its Records
relating to the Receivables, are located at the address(es) described on Exhibit
B annexed hereto or such other locations notified to the Purchaser in accordance
with Section 5.1 hereof in jurisdictions where all action required by Section
2.1 hereof has been taken and completed.
(j) GOOD TITLE. Upon each sale, the Purchaser shall
acquire a valid ownership interest in each Receivable that exists on the date of
such sale and in the Related Security and Collections with respect thereto free
and clear of any Adverse Claim.
(k) TRADENAMES, ETC. As of the date hereof: (i) the
Seller has no Subsidiaries or divisions except those set forth on Exhibit C
annexed hereto; and (ii) the Seller and each Originator Subsidiary has, within
the last eighteen (18) months, operated only under the tradenames identified in
Exhibit D annexed hereto, and, within the last eighteen (18) months, has not
changed its name, merged with or into or consolidated with any other corporation
or been the subject of any proceeding under the Bankruptcy Code, except as
disclosed in Exhibit D annexed hereto.
(l) NATURE OF RECEIVABLES. Each Receivable (x)
represented by the Seller to be an Eligible Receivable (including in any
Investor Report or other report delivered pursuant to Section 3.3 hereof or (y)
included in the calculation of the Net Receivables Balance, in fact satisfies at
such time the definition of "Eligible Receivable" set forth herein and, in the
case of clause (y) above, is not a Receivable of the type described in clause
(i) of the definition of "Net Receivables Balance".
(m) AMOUNT OF RECEIVABLES. As of May 31, 1999, the
aggregate outstanding balance of the Receivables in existence was $207,588,629
and the Net Receivable Balance was $132,323,430.
(n) CREDIT AND COLLECTION POLICY. Since June 4, 1999,
there have been no material changes in any Credit and Collection Policy other
than as permitted hereunder.
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(o) COLLECTIONS AND SERVICING. Since June 4, 1999, there
has been no material adverse change in the ability of the Seller or any
Originator Subsidiary to service and collect the Receivables.
(p) NO PURCHASE TERMINATION DATE. No Purchase Termination
Date has occurred.
(q) NOT AN INVESTMENT COMPANY OR A HOLDING COMPANY. The
Seller is not, and is not controlled by, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or is exempt from all
provisions of such Act. The Seller is not a "holding company", or a subsidiary
or affiliate of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(r) COMPLIANCE WITH ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
(s) LOCK-BOX ACCOUNTS. The names and addresses of all the
Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at
such Lock-Box Banks, are specified in Exhibit C to the Transfer Agreement (or at
such other Lock-Box Banks and/or with such other Lock-Box Accounts as will have
been notified to the Servicer and for which Lock-Box Agreements will have been
executed and delivered to the Servicer). All Obligors have been instructed to
make payment to a Lock-Box Account and only Collections are deposited into the
Lock-Box Accounts.
(t) BULK SALES. No transaction contemplated hereby
requires compliance with any bulk sales act or similar law.
(u) PREFERENCE; VOIDABILITY. The Purchaser has given
reasonably equivalent value to the Seller in consideration for the transfer to
the Purchaser of the Receivables and Related Security by the Seller, and each
such transfer has not been made for or on account of an antecedent debt owed by
the Seller to the Purchaser.
(v) YEAR 2000 COMPLIANCE. The Seller and each Originator
Subsidiary has (i) initiated a review and assessment of all areas within its and
each of its Subsidiaries' business and operations (including those affected by
suppliers and vendors) that could be adversely affected by
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the Year 2000 Problem, (ii) developed a plan and timeline for addressing the
Year 2000 Problem on a timely basis, and (iii) to date, implemented that plan
in accordance with that timetable. The Seller reasonably believes that all
computer applications (including those of its suppliers and vendors) that are
material to its or any of the Originator Subsidiaries' business and
operations will on a timely basis be Year 2000 Compliant on or before
September 30, 1999 and thereafter, except to the extent that a failure to do
so could not reasonably be expected (a) to have a material adverse effect on
the ability of the Seller to perform its obligations hereunder or (b) to
result in a Purchase Termination Date.
The Seller (i) has completed a review and assessment of all
the Receivables Systems and (ii) has determined that such Receivable Systems are
Year 2000 Compliant or will be Year 2000 Compliant on or before September 30,
1999 and thereafter.
The costs of all necessary assessment, remediation, testing
and integration related to the Seller's plan for becoming Year 2000 Compliant
will not have a material adverse effect on the financial condition or operations
of the Seller.
SECTION 4.2. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
BY THE SELLER; NOTICE OF BREACH. On each date that Receivables are conveyed
hereunder, the Seller, by accepting the proceeds of such conveyance, shall be
deemed to have certified that all representations and warranties described in
Section 4.1 are true and correct on and as of such day as though made on and as
of such day. The representations and warranties set forth in Section 4.1 shall
survive the conveyance of Receivables to the Purchaser, and termination of the
rights and obligations of the Purchaser and the Seller under this Agreement.
Upon discovery by the Purchaser or the Seller of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other within three Business Days of such
discovery.
ARTICLE V
COVENANTS OF THE SELLER
SECTION 5.1. AFFIRMATIVE COVENANTS OF THE SELLER. At all times from the
date hereof to the Purchase Termination Date:
(a) CONDUCT OF BUSINESS. The Seller will, and will cause
each of the Originator Subsidiaries to do all things necessary to remain duly
incorporated, validly existing and in good standing as a domestic corporation in
its jurisdiction of incorporation and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted
except where the failure to do so would not have a material adverse effect on
the ability of the Seller or any Originator Subsidiary's ability to perform
their respective obligations hereunder. The Seller will cause each of the
Originator Subsidiaries to carry on and conduct its business in substantially
the same manner and in substantially the same fields of enterprise as it is
presently conducted.
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(b) COMPLIANCE WITH LAWS. The Seller will, and will cause
each of the Originator Subsidiaries to, comply with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it or its respective properties may be subject, except where the failure to do
so would not have a material adverse effect on the ability of the Seller or any
Originator Subsidiary's ability to perform their respective obligations
hereunder.
(c) FURNISHING OF INFORMATION AND INSPECTION OF RECORDS.
The Seller will, and will cause each Originator Subsidiary to, furnish to the
Purchaser from time to time such information with respect to the Receivables as
the Purchaser may reasonably request, including, without limitation, listings
identifying the Obligor and the outstanding balance for each Receivable. The
Seller will, and will cause each Originator Subsidiary to, at any time and from
time to time during regular business hours permit, upon reasonable notice, the
Purchaser, or its agents or representatives, (i) to examine and make copies of
and take abstracts from all Records and (ii) to visit the offices and properties
of the Seller or the applicable Originator Subsidiary, for the purpose of
examining such Records, and to discuss matters relating to Receivables or the
Seller's or such Originator Subsidiary's performance under the Transfer
Agreement with any of the officers, directors, employees or independent public
accountants of the Seller or such Originator Subsidiary having knowledge of such
matters.
(d) OFFICES, RECORDS AND BOOKS OF ACCOUNT. The Seller
will, and will cause each Originator Subsidiary to (i) keep its principal place
of business and chief executive office (as such terms or similar terms are used
in the UCC) and the office where it keeps its records concerning the Receivables
at the addresses set forth in Section 9.3 hereof or at any other locations in
jurisdictions where all actions reasonably requested by the Purchaser to protect
and perfect the interest of the Purchaser in the Receivables and the Related
Collateral have been taken and completed and (ii) shall provide the Purchaser
with at least 30 days' written notice before making any change in its name or
making any other change in its identity or corporate structure that could render
any UCC financing statement filed in connection with the Transfer Agreement
seriously misleading as such term (or similar term) is used in the Relevant UCC;
each notice to the Purchaser pursuant to this sentence shall set forth the
applicable change and the effective date thereof. The Seller will, and will
cause each Originator Subsidiary to, maintain and implement (or cause to be
maintained and implemented) administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing Receivables in the
event of the destruction of the originals thereof), and keep and maintain (or
cause to be maintained and implemented), all documents, books, records and other
information reasonably necessary or advisable for the collection of all
Receivables (including, without limitation, records adequate to permit the daily
identification of each new Receivable and all Collections of and adjustments to
each existing Receivable in accordance with its Credit and Collection Policy).
The Seller will give notice to the Purchaser of any material change in the
administrative and operating procedures of the Seller referred to in the
previous sentence.
(e) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND
CONTRACTS. The Seller will, and will cause each Originator Subsidiary to, timely
and fully perform and comply with all
13
material provisions, covenants and other promises required to be observed by
the Seller or such Originator Subsidiary under the Contracts related to the
Receivables.
(f) CREDIT AND COLLECTION POLICIES. The Seller will, and
will cause each Originator Subsidiary to, comply in all material respects with
the relevant Credit and Collection Policy in regard to each Receivable and the
related Contract.
(g) COLLECTIONS. The Seller will instruct all Obligors,
or cause all Obligors to be instructed, to cause all Collections to be deposited
directly to a Lock-Box Account.
(h) COLLECTIONS RECEIVED. The Seller will, and will cause
each Originator Subsidiary to, hold in trust, and deposit, immediately, but in
any event not later than two (2) Business Days of its receipt thereof, to a
Lock-Box Account all Collections received from time to time by the Seller;
provided, that if the Seller or an Originator Subsidiary receives any
Collections, the Seller shall, and shall cause such Originator Subsidiary to, as
applicable, immediately, but in any event within two (2) Business Days of
receipt, remit such Collections to a Lock-Box Account; PROVIDED, FURTHER, that
the Seller and the Originator Subsidiaries may initially deposit any checks
which it receives pursuant to this sentence into its operating account if such
Collections are transferred from such operating account to a Lock-Box Account
within two (2) Business Days and the aggregate amount of such Collections in all
such operating accounts does not exceed at any one time $10,000,000.
(i) SALE TREATMENT. The Seller will treat this conveyance
for accounting purposes as a sale and to the extent any such reporting is
required, will report the transactions contemplated by this Agreement on all
relevant books, records, financial statements and other applicable documents
(other than for tax purposes) as a sale of Receivables to the Purchaser. Without
limiting the foregoing, the Seller will disclose (in a footnote or otherwise) in
all of its respective financial statements (including any such financial
statements consolidated with any other Persons' financial statements) the
existence and nature of the transaction contemplated hereby and the interest of
the Purchaser in the Receivables sold hereunder and the Related Security.
(j) YEAR 2000 COMPLIANCE. The Seller will promptly notify
the Purchaser in the event the Seller discovers or determines that any
Receivables System (including those of its suppliers and vendors) (i) that is
necessary for the origination, collection, management, or servicing of the
Receivables will not be Year 2000 Compliant on or before September 30, 1999 and
thereafter, or (ii) that is otherwise material to its or any of the Originator
Subsidiaries' business and operations will not be Year 2000 Compliant on a
timely basis, except to the extent that, in the case of (ii) above, such failure
could not reasonably be expected (a) to have a material adverse effect on the
ability of the Seller to perform its obligations hereunder, or (b) to result in
a Purchase Termination Date.
(k) OWNERSHIP INTEREST, ETC. The Seller will, at its
expense, take all action necessary to establish and maintain a valid and
enforceable ownership interest in the Receivables
14
and the Related Security, free and clear of any Adverse Claim, in favor of
the Purchaser or the Agent, including taking such action to perfect, protect
or more fully evidence the interest of the Purchaser, as the Purchaser may
reasonably request.
SECTION 5.2. NEGATIVE COVENANTS OF THE SELLER. At all times
from the date hereof to the Purchase Termination Date:
(a) NO SALES, LIENS, ETC. Except as otherwise provided
herein or under the Transfer Agreement, the Seller will not, nor will it permit
any Originator Subsidiary to, sell, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist any Adverse Claim upon (or
the filing of any financing statement) or with respect to (x) any of the
Receivables sold hereunder and the Related Security, (y) any inventory or goods,
the sale of which gives rise to a Receivable (other than sales in the ordinary
course of its business), or (z) any account which concentrates in a Lock-Box
Bank to which the Collections of Receivables sold hereunder and the Related
Security are sent, or assign any right to receive income in respect thereof.
(b) NO EXTENSION OR AMENDMENT OF RECEIVABLES. Except as
otherwise permitted in Section 6.2 of the Transfer Agreement, the Seller will
not, nor will it permit any Originator Subsidiary to, extend, amend or otherwise
modify the terms of any Receivable, or amend, modify or waive terms or
conditions of Contract related thereto.
(c) NO CHANGE IN CREDIT AND COLLECTION POLICY. The Seller
will not, nor will it permit any Originator Subsidiary to, make any change in
its Credit and Collection Policy, which change would impair the collectibility
of any material portion of the Receivables or otherwise have a material adverse
effect on the ability of the Seller to perform its obligations hereunder.
(d) NO MERGERS, ETC. The Seller will not (i) consolidate
or merge with or into any other Person or (ii) sell, lease or otherwise transfer
directly or indirectly all or any substantial part of the assets of the Seller
and its Subsidiaries taken as a whole to any other Person; provided that the
Seller may merge with another Person if the Seller is the surviving corporation
and, after giving effect thereto, no Purchase Termination Date exists.
(e) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. The
Seller will not, nor will it permit any Originator Subsidiary to, add or
terminate any bank as a Lock-Box Bank or any account as a Lock-Box Account to or
from those listed in Exhibit C to the Transfer Agreement or make any change in
its instructions to Obligors regarding payments to be made to any Lock-Box
Account, unless (i) such instructions are to deposit such payments to another
existing Lock-Box Account or (ii) the Agent shall have received written notice
of such addition, termination or change at least 30 days prior thereto and the
Agent shall have received a Lock-Box Agreement executed by each new Lock-Box
Bank or an existing Lock-Box Bank with respect to each new Lock-Box Account, as
applicable.
15
(f) DEPOSITS TO LOCK-BOX ACCOUNTS. The Seller will not,
nor will it permit any Originator Subsidiary to, deposit or otherwise credit, or
cause or permit to be so deposited or credited, to any Lock-Box Account cash or
cash proceeds other than Collections of Receivables unless such other cash and
proceeds are removed from such Lock-Box Account within two (2) Business Days.
(g) CHANGE OF NAME, ETC. The Seller will not, nor will it
permit any Originator Subsidiary to, change its name, identity or structure or
the location of its chief executive office, unless at least ten (10) days prior
to the effective date of any such change the Seller delivers to the Purchaser
(i) such documents, instruments or agreements, executed by the Seller or such
Originator Subsidiary as are necessary to reflect such change and to continue
the perfection of the Purchaser's ownership interests in the Affected Assets and
(ii) new or revised Lock-Box Agreements executed by the Lock-Box Banks which
reflect such change and enable the Agent to continue to exercise its rights
contained in Section 2.7 of the Transfer Agreement.
(h) AMENDMENTS TO LOCK-BOX AGREEMENTS. The Seller will
not, nor will it permit any Originator Subsidiary to, amend, modify, or
supplement any Lock-Box Agreement or waive any provision thereof, in each case
except with the prior written consent of the Agent; nor shall the Seller or any
Originator Subsidiary take any other action under any Lock-Box Agreement that
could have a material adverse effect on the Agent, the Company or any Bank
Investor or which is inconsistent with the terms of the Transfer Agreement.
ARTICLE VI
REPURCHASE OBLIGATION; DEEMED COLLECTIONS;INDEMNITIES
SECTION 6.1. MANDATORY REPURCHASE. (a) If on any day the outstanding balance
of a Receivable conveyed hereunder and included at any time as an Eligible
Receivable on an Investor Report is either (x) reduced as a result of any
defective, rejected or returned merchandise or services, any discount,
credit, dispute, warranty claim, repossessed or returned goods, charge-back,
allowance, any billing adjustment, similar dilutive factor or other similar
adjustment or (y) reduced or canceled as a result of a setoff or offset in
respect of any claim by any Person against the Seller, any Originator
Subsidiary or the Servicer (whether such claim arises out of the same or a
related transaction or an unrelated transaction), the Seller shall be deemed
to have received on such day a Collection of such Receivable in the amount of
such reduction or cancellation and the Seller shall pay to the Purchaser an
amount equal to such reduction or cancellation.
(b) If on any day any representation or warranty of
the Seller in this Agreement was or becomes untrue with respect to a
Receivable (whether on or after the date of any transfer of such Receivable
to the Purchaser), the Seller shall be deemed to have received on such day a
Collection of such Receivable in full and the Seller shall on such day pay to
the Purchaser an amount equal to the outstanding balance of such Receivable.
16
(c) Any payment by an Obligor in respect of any
indebtedness, obligation or liability owed by it to the Seller or any Originator
Subsidiary shall, except as otherwise specified by such Obligor or otherwise
required by contract or law be applied as a Collection of any Receivable of such
Obligor included in the Receivables transferred hereunder (starting with the
oldest such Receivable) to the extent of any amounts then due and payable
thereunder before being applied to any other receivable or other indebtedness of
such Obligor to the Seller.
SECTION 6.2. INDEMNIFICATION. The Seller agrees to
indemnify, defend and hold the Purchaser harmless from and against any and
all losses, liabilities, damages, judgments, claims, deficiencies, or
expenses (including interest, penalties, reasonable attorneys' fees and
amounts paid in settlement) ("INDEMNIFIED AMOUNTS") to which the Purchaser or
any assignee thereof may become subject insofar as any such Indemnified
Amount arises out of or is based upon a breach by the Seller of its
representations, warranties and covenants contained herein, or any
information certified in any schedule or certificate delivered by the Seller
hereunder, being untrue in any material respect at any time; excluding,
however, Indemnified Amounts resulting from (i) recourse for uncollectible
Receivables and Related Security or (ii) the gross negligence or willful
misconduct on the part of Purchaser or such assignee. The obligations of the
Seller under this Section 6.2 shall be considered to have been relied upon by
the Purchaser, the Company and the Bank Investors and shall survive the
execution, delivery, performance and termination of this Agreement,
regardless of any investigation made by the Purchaser, the Company, any Bank
Investor or on behalf of any of them.
SECTION 6.3. NO RECOURSE. Except as otherwise provided in this
Article VI, the purchase and sale of Receivables under this Agreement shall be
without recourse to the Seller.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1. CONDITIONS TO THE PURCHASER'S OBLIGATIONS REGARDING RECEIVABLES.
The obligations of the Purchaser to purchase any Receivables on any sale date
(except clause (e), which shall apply only on the initial sale date) shall be
subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Seller
contained in this Agreement shall be true and correct in all material respects
on each sale date with the same effect as though such representations and
warranties had been made on such date;
(b) All information concerning such Receivables provided
to the Purchaser shall be true and correct in all material respects as of any
sale date;
(c) The Seller shall have substantially performed all
other obligations required to be performed by the provisions of this Agreement;
17
(d) The Seller shall have filed or caused to be filed the
financing statement(s) required to be filed pursuant to Section 2.1(b); and
(e) All corporate and legal proceedings and all
instruments in connection with the transactions contemplated by this Agreement
shall be satisfactory in form and substance to the Purchaser, and the Purchaser
shall have received from the Seller copies of all documents (including, without
limitation, records of corporate proceedings) relevant to the transactions
herein contemplated as the Purchaser may reasonably have requested.
ARTICLE VIII
TERM AND TERMINATION
SECTION 8.1. TERM. This Agreement shall commence as of the date of execution
and delivery hereof and shall continue in full force and effect until the
date following the earlier of (i) the date designated by the Purchaser or the
Seller as the termination date at any time following sixty (60) day's written
notice to the other (with a copy thereof to the Agent), (ii) the date on
which the Termination Date (other than a Termination Date caused by a Conduit
Termination Event) occurs or is declared pursuant to Section 7.2 of the
Transfer Agreement, (iii) the day on which the Investment Termination Date
shall occur under the Transfer Agreement unless the Transferred Interest
shall have been assigned (or concurrently is so assigned) to the Bank
Investors under Section 9.9 of the Transfer Agreement, (iv) upon the
occurrence of an Event of Bankruptcy with respect to either the Purchaser or
the Seller, or (v) the date on which either the Purchaser or the Seller
becomes unable for any reason to purchase or re-purchase any Receivable in
accordance with the provisions of this Agreement or defaults on its material
obligations hereunder, which inability to purchase or default continues
unremedied for more than thirty (30) days after written notice by the other
party hereto (any such date being a "PURCHASE TERMINATION DATE"); PROVIDED,
HOWEVER, that the occurrence of the Purchase Termination Date pursuant to
this Section 8.1 hereof shall not discharge any Person from any obligations
incurred prior to the Purchase Termination Date, including, without
limitation, any obligations to make any payments with respect to the interest
of the Purchaser in any Receivable sold prior to the Purchase Termination
Date.
SECTION 8.2. EFFECT OF PURCHASE TERMINATION DATE.
Following the occurrence of the Purchase Termination Date pursuant to Section
8.1 hereof, the Seller shall not sell, and the Purchaser shall not purchase,
any Receivables. No termination or rejection or failure to assume the
executory obligations of this Agreement in any Event of Bankruptcy with
respect to the Seller or the Purchaser shall be deemed to impair or affect
the obligations pertaining to any executed sale or executed obligations,
including, without limitation, pre-termination breaches of representations
and warranties by the Seller or the Purchaser. Without limiting the
foregoing, prior to the Purchase Termination Date, the failure of the Seller
to deliver computer records of any Receivables or any reports regarding any
Receivables shall not render such transfer or
18
obligation executory, nor shall the continued duties of the parties pursuant
to Article V or Section 9.1 of this Agreement render an executed sale
executory.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1. AMENDMENT. This Agreement and the rights and obligations of the
parties hereunder may not be changed orally, but only by an instrument in
writing signed by the Purchaser and the Seller and consented to in writing by
the Agent. Any reconveyance executed in accordance with the provisions hereof
shall not be considered amendments to this Agreement.
SECTION 9.2. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) The parties hereto hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in The City of New York for
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. Each party hereto hereby irrevocably
waives, to the fullest extent it may effectively do so, any objection which it
may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum. Nothing in this Section 9.2
shall affect the right of the Purchaser to bring any other action or proceeding
against the Seller or its property in the courts of other jurisdictions.
SECTION 9.3. NOTICES. Except as provided below, all
communications and notices provided for hereunder shall be in writing (including
telecopy or electronic facsimile transmission or similar writing) and shall be
given to the other party at its address or telecopy number set forth below or at
such other address or telecopy number as such party may hereafter specify for
the purposes of notice to such party. Each such notice or other communication
shall be effective (i) if given by telecopy, when such telecopy is transmitted
to the telecopy number specified in this Section 9.3 and confirmation is
received, (ii) if given by mail 3 Business Days following such posting, postage
prepaid, U.S. certified or registered, (iii) if given by overnight courier, one
(1) Business Day after deposit thereof with a national overnight courier
service, or (iv) if given by any other means, when received at the address
specified in this Section 9.3.
19
(a) in the case of the Purchaser:
KCH Funding, L.L.C.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000-0000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
NationsBank, N.A.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Asset Backed Securitization Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) in the case of the Seller:
UNOVA, Inc.
00000 Xxxxxxx Xxxx.
Xxxxxxxx Xxxxx, XX 00000-0000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
SECTION 9.4. SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
SECTION 9.5. ASSIGNMENT. This Agreement may not be assigned by
the parties hereto, except that the Purchaser may assign its rights hereunder
pursuant to the Transfer Agreement to the Agent, for the benefit of the Company
and the Bank Investors, and that the
20
Company may assign any or all of its rights to any Liquidity Provider or to a
Conduit Assignee. The Purchaser hereby notifies (and the Seller hereby
acknowledges that) the Purchaser, pursuant to the Transfer Agreement, has
assigned its rights hereunder to the Agent. All rights of the Purchaser
hereunder may be exercised by the Agent or its assignees, to the extent of
their respective rights pursuant to such assignments.
SECTION 9.6. FURTHER ASSURANCES. The Purchaser and the Seller
agree to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the other party
more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or continuation statements
or equivalent documents relating to the Receivables conveyed hereunder for
filing under the provisions of the Relevant UCC or other laws of any applicable
jurisdiction.
SECTION 9.7. NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of the Purchaser, the Seller or
the Agent, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privilege provided by law.
SECTION 9.8. COUNTERPARTS. This Agreement may be executed in
two or more counterparts including telecopy transmission thereof (and by
different parties on separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same instrument.
SECTION 9.9. BINDING EFFECT; THIRD-PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. The Agent, on behalf of
the Company and its assignees and the Bank Investors, and any Liquidity Provider
is intended by the parties hereto to be a third-party beneficiary of this
Agreement.
SECTION 9.10. MERGER AND INTEGRATION. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
SECTION 9.11. HEADINGS. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
SECTION 9.12. EXHIBITS. The schedules and exhibits referred to
herein shall constitute a part of this Agreement and are incorporated into this
Agreement for all purposes.
21
IN WITNESS WHEREOF, the Purchaser and the Seller each have
caused this Receivables Purchase Agreement to be duly executed by their
respective officers as of the day and year first above written.
UNOVA, INC.,
as Seller
By: /S/ XXXXXXX X. XXXXXXXX
---------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
KCH FUNDING, L.L.C.,
as Purchaser
By: /S/ XXXXX X. XXXX, XX.
---------------------------
Xxxxx X. Xxxx, Xx.
Treasurer
Acknowledged and agreed as
of the date first above written:
ENTERPRISE FUNDING CORPORATION
By: /S/ XXXXXX X. XXXXX
---------------------------
Xxxxxx X. Xxxxx
President
NATIONSBANK, N.A., as Agent
By: /S/ XXXXXX X. XXXX
---------------------------
Xxxxxx X. Xxxx
Vice President
EXHIBIT A
[Form of Transfer Certificate]
TRANSFER CERTIFICATE
Reference is made to the Receivables Purchase Agreement
dated as of June 18, 1999 (such agreement as amended, modified or
supplemented from time to time, the "Agreement") among KCH Funding, L.L.C.,
as purchaser (the "Purchaser") and UNOVA, Inc., as seller (the "Seller").
Terms defined in the Agreement are used herein as therein defined.
The Seller hereby sells, conveys, transfers and assigns to
the Purchaser, all of its right, title and interest, whether now owned or
hereafter acquired, in, to and under certain Receivables and the Related
Security, Collections and proceeds relating thereto, (the "Transfer"). Each
Transfer by the Seller to the Purchaser and evidenced hereby shall be
indicated by the Purchaser on the grid attached hereto which is part of this
Transfer Certificate.
This Transfer Certificate is made without recourse except
as otherwise provided in the Agreement.
This Transfer Certificate shall be governed by, and
construed in accordance with, the laws of the State of New York, without
giving effect to the conflicts of law provisions thereof.
IN WITNESS WHEREOF, the undersigned has caused this
Transfer Certificate to be duly executed and delivered by its duly authorized
officer as of the date first above written.
UNOVA, INC.
By:
------------------------------
Name:
Title:
A-1
GRID
DATE OF AMOUNT OF TOTAL
TRANSFER TRANSFER TRANSFER
-------- --------- --------
A-2
