Exhibit 10.21
CANADIAN
PURCHASE AND SALE AGREEMENT
DATED AS OF SEPTEMBER 26, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CORP.,
AMPHENOL FUNDING CORP.,
AND
AMPHENOL CORPORATION,
INDIVIDUALLY AND AS THE INITIAL SERVICER.
TABLE OF CONTENTS
ARTICLE I
AGREEMENT TO PURCHASE AND SELL
SECTION 1.1 AGREEMENT TO PURCHASE AND SELL..................................2
SECTION 1.2 TIMING OF PURCHASES.............................................3
SECTION 1.3 CONSIDERATION FOR PURCHASES.....................................3
SECTION 1.4 [Intentionally Omitted]..........................................3
SECTION 1.5 PURCHASE AND SALE TERMINATION DATE..............................3
ARTICLE II
CALCULATION OF PURCHASE PRICE
SECTION 2.1 CALCULATION OF PURCHASE PRICE...................................3
SECTION 2.2 DEFINITIONS AND CALCULATIONS RELATED TO PURCHASE PRICE..........5
ARTICLE III
PAYMENT OF PURCHASE PRICE
SECTION 3.1 INITIAL PURCHASE PRICE PAYMENT..................................6
SECTION 3.2 SUBSEQUENT PURCHASE PRICE PAYMENTS..............................6
SECTION 3.3 SETTLEMENT AS TO SPECIFIC RECEIVABLES...........................7
SECTION 3.4 SETTLEMENT AS TO DILUTION.......................................7
ARTICLE IV
[INTENTIONALLY OMITTED]
ARTICLE V
CONDITIONS OF PURCHASES
SECTION 5.1 CONDITIONS PRECEDENT TO PURCHASE................................8
SECTION 5.2 CERTIFICATION AS TO REPRESENTATIONS AND WARRANTIES.............10
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR
SECTION 6.1 ORGANIZATION AND GOOD STANDING.................................10
SECTION 6.2 DUE QUALIFICATION..............................................10
SECTION 6.3 POWER AND AUTHORITY; DUE AUTHORIZATION.........................11
SECTION 6.4 VALID SALE; BINDING OBLIGATIONS................................11
SECTION 6.5 NO VIOLATION...................................................11
SECTION 6.6 PROCEEDINGS....................................................11
CANADIAN PURCHASE AND SALE AGREEMENT - i
SECTION 6.7 BULK SALES ACTS................................................11
SECTION 6.8 GOVERNMENT APPROVALS...........................................12
SECTION 6.9 MATERIAL ADVERSE EFFECT........................................12
SECTION 6.10 LICENSES, CONTINGENT LIABILITIES AND LABOR CONTROVERSIES......12
SECTION 6.11 MARGIN REGULATIONS............................................12
SECTION 6.12 QUALITY OF TITLE..............................................12
SECTION 6.13 ACCURACY OF INFORMATION.......................................12
SECTION 6.14 OFFICES.......................................................13
SECTION 6.15 TRADE NAMES...................................................13
SECTION 6.16 TAXES.........................................................13
SECTION 6.17 COMPLIANCE WITH APPLICABLE LAWS...............................13
ARTICLE VII
COVENANTS OF THE ORIGINATOR
SECTION 7.1 AFFIRMATIVE COVENANTS..........................................13
SECTION 7.2 REPORTING REQUIREMENTS.........................................16
SECTION 7.3 NEGATIVE COVENANTS.............................................16
SECTION 7.4 LOCK-BOX BANKS. ...............................................17
ARTICLE VIII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
SECTION 8.1 RIGHTS OF AFC..................................................17
SECTION 8.2 RESPONSIBILITIES OF THE ORIGINATOR.............................17
SECTION 8.3 FURTHER ACTION EVIDENCING PURCHASES............................18
SECTION 8.4 APPLICATION OF COLLECTIONS.....................................18
ARTICLE IX
PURCHASE AND SALE TERMINATION EVENTS
SECTION 9.1 PURCHASE AND SALE TERMINATION EVENTS...........................19
SECTION 9.2 REMEDIES.......................................................20
ARTICLE X
INDEMNIFICATION
SECTION 10.1 INDEMNITIES BY AMPHENOL AND THE ORIGINATOR....................20
SECTION 10.2 CURRENCY INDEMNITY.............................................22
SECTION 10.3 TAXES AND DEDUCTIONS...........................................22
CANADIAN PURCHASE AND SALE AGREEMENT - ii
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 AMENDMENTS, WAIVERS, ETC......................................22
SECTION 11.2 NOTICES, ETC..................................................23
SECTION 11.3 CUMULATIVE REMEDIES...........................................23
SECTION 11.4 BINDING EFFECT; ASSIGNABILITY.................................23
SECTION 11.5 GOVERNING LAW.................................................23
SECTION 11.6 COSTS, EXPENSES AND TAXES.....................................24
SECTION 11.7 SUBMISSION TO JURISDICTION; PROCESS AGENT.....................24
SECTION 11.8 WAIVER OF JURY TRIAL..........................................25
SECTION 11.9 CAPTIONS AND CROSS REFERENCES; INCORPORATION BY REFERENCE.....25
SECTION 11.10 EXECUTION IN COUNTERPARTS....................................25
SECTION 11.11 ACKNOWLEDGMENT AND AGREEMENT.................................25
SECTION 11.12 NO PROCEEDINGS...............................................25
APPENDIX A Definitions
EXHIBIT A Form of Purchase Report
EXHIBIT B Form of Originator Assignment Certificate
EXHIBIT C Proceedings
EXHIBIT D Office Locations
EXHIBIT E Trade Names and Corporate Reorganizations
CANADIAN PURCHASE AND SALE AGREEMENT - iii
THIS CANADIAN PURCHASE AND SALE AGREEMENT (this "AGREEMENT"), dated as of
September 26, 1997, is among AMPHENOL CORPORATION, a Delaware corporation
("AMPHENOL"), individually and as the initial Servicer, AMPHENOL CANADA CORP., a
Canadian corporation (the "ORIGINATOR"), and AMPHENOL FUNDING CORP., a Delaware
corporation ("AFC").
DEFINITIONS
Unless otherwise indicated, certain terms that are capitalized and used
throughout this Agreement are defined in APPENDIX A. All references herein to
months are to calendar months unless otherwise expressly indicated.
BACKGROUND
1.AFC is a special purpose corporation, all of the issued and outstanding
shares of which are owned by Affiliates of the Originator.
2.The Originator generates Receivables in the ordinary course of its
business, certain of which are denominated in Canadian Dollars.
3.The Originator, in order to finance its business, wishes to sell
Receivables to AFC, and AFC is willing, on the terms and subject to the
conditions set forth herein, to purchase Receivables from the Originator.
4.Each of the Originator and AFC intends this transaction to be a true sale
of Receivables by the Originator to AFC providing AFC with the full benefits of
ownership of the Receivables, and the Originator and AFC do not intend the
transactions hereunder to be, or for any purpose to be, characterized as a loan
from AFC to the Originator.
5.AFC has entered into the Receivables Purchase Agreement with Pooled
Accounts Receivable Capital Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc., as the
Agent, and Amphenol pursuant to which AFC intends to sell Participations in the
Receivables from time to time pursuant to the Receivables Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
AGREEMENT TO PURCHASE AND SELL
SECTION 1.1 AGREEMENT TO PURCHASE AND SELL. On the terms and subject to
the conditions set forth in this Agreement (including ARTICLE V), the Originator
agrees to sell to AFC, and AFC agrees to purchase from the Originator, from time
to time on or after the Initial Closing Date, but before the Purchase and Sale
Termination Date, all of the Originator's right, title and interest in and to:
(a)each Receivable of the Originator that existed and was owing to the
Originator as at the closing of the Originator's business on September 26,
1997;
(b)each Receivable created by the Originator from and including the
closing of the Originator's business on September 26, 1997, to and
including the Purchase and Sale Termination Date;
(c)all rights to, but not the obligations under, all Related Security;
(d)all monies due or to become due with respect to the Receivables
described in CLAUSES (A) and (B);
(e)all proceeds of Receivables described in CLAUSES (A) and (B) above
(as defined in the UCC) that are or were received by the Originator on or
after the closing of the Originator's business on September 26, 1997,
including, without limitation, all funds that either are received by the
Originator, AFC or the Servicer from or on behalf of the Obligors in
payment of any amounts owed (including, without limitation, invoice price,
finance charges and all other charges) in respect of Receivables, or are
applied to such amounts owed by the Obligors (including, without
limitation, insurance payments that the Originator or the Servicer applies
in the ordinary course of its business to amounts owed in respect of any
Receivable and net proceeds of sale or other disposition of repossessed
goods or other collateral or property of the Obligors or any other parties
directly or indirectly liable for payment of such Receivables); and
(f)all books and records related to any of the foregoing.
All purchases hereunder shall be made without recourse, but shall be made
pursuant to, and in reliance upon, the representations, warranties and covenants
of the Originator set forth in this Agreement and each other Transaction
Document. No obligation or liability to any Obligor on any Receivable is
intended to be assumed by AFC hereunder, and any such assumption is expressly
disclaimed. The sale of Receivables and related rights under this Agreement is
absolute and unconditional and is not intended by the parties to be, and shall
not be construed to be, a loan or an arrangement by way of security.
Notwithstanding anything else herein to the contrary, there is hereby excluded
from such sale any rights to recover, or any amounts payable by any Obligor with
CANADIAN PURCHASE AND SALE AGREEMENT - 2
respect to, interest, finance charges or any similar charges on any Receivable
the Obligor of which is not a resident of the United States. AFC's foregoing
commitment to purchase Receivables and related rights is herein called the
"PURCHASE FACILITY."
SECTION 1.2 TIMING OF PURCHASES.
(a)INITIAL CLOSING DATE PURCHASES. The Originator's entire right, title and
interest in: (i) each Receivable that existed and was owing to the Originator as
at the closing of the Originator's business on September 26, 1997, (ii) all
Receivables created by the Originator from and including the closing of the
Originator's business on such date to and including the Initial Closing Date,
and (iii) all related assets and proceeds thereof (as described in the foregoing
SECTION 1.1) automatically shall be deemed to have been sold to AFC on the
Initial Closing Date.
(b)REGULAR PURCHASES. After the Initial Closing Date, until the Purchase
and Sale Termination Date, each Receivable (and the rights related thereto
described in SECTION 1.1) created by the Originator shall be deemed to have been
sold to AFC immediately (and without further action) upon the creation of such
Receivable.
SECTION 1.3 CONSIDERATION FOR PURCHASES. On the terms and subject to the
conditions set forth in this Agreement, AFC agrees to make Purchase Price
payments to the Originator in accordance with ARTICLE III.
SECTION 1.4 [Intentionally Omitted].
SECTION 1.5 PURCHASE AND SALE TERMINATION DATE. The "PURCHASE AND SALE
TERMINATION DATE" shall be the earliest to occur of: (a) the date of the
termination of this Agreement pursuant to SECTION 9.2 and (b) the Payment Date
immediately following the day on which the Originator shall have given notice to
AFC at or prior to 10:00 a.m. (New York City time) that the Originator desires
to terminate this Agreement; PROVIDED, HOWEVER, that the Purchase and Sale
Termination Date shall not occur until the Commitment shall have terminated, the
Aggregate Investment shall have been reduced to zero and all Obligations shall
have been finally and fully paid and performed.
ARTICLE II
CALCULATION OF PURCHASE PRICE
SECTION 2.1 CALCULATION OF PURCHASE PRICE. On each Payment Date (including
the Initial Closing Date), the Servicer shall deliver to AFC, the Agent and the
Originator a report in substantially the form of EXHIBIT A (each such report
being herein called a "PURCHASE REPORT") with respect to AFC's payment for
Receivables purchased from the Originator:
(a)that are to be made on such Payment Date (in the case of the
Purchase Report to be delivered on Initial Closing Date), or
CANADIAN PURCHASE AND SALE AGREEMENT - 3
(b)that were made during the month immediately preceding such
Payment Date (in the case of each subsequent Purchase Report) (or, in
the case of the first Payment Date after the Initial Closing Date,
from the closing of the Originator's business on September 26 to the
end of such preceding month).
The "PURCHASE PRICE" to be paid to the Originator on each Payment Date for the
Receivables that are to be sold by the Originator on such Payment Date (in the
case of the Initial Closing Date) or that were sold by the Originator during the
month immediately preceding such Payment Date (in the case of each subsequent
Payment Date) shall be set forth in the relevant Purchase Report and shall be
determined in accordance with the following formula:
PP = AUB - PD
where:
-----
PP = Purchase Price to be paid to the Originator on the relevant
Payment Date
AUB = (i) for purposes of calculating the Purchase Price on the
Initial Closing Date, the aggregate outstanding Unpaid
Balance of all Receivables that were generated by the
Originator, as measured as at the closing of the
Originator's business on September 26, 1997, and (ii) for
purposes of calculating the Purchase Price on each Payment
Date thereafter, the aggregate Unpaid Balance of all
Receivables generated by the Originator during the month
immediately preceding such Payment Date (or, in the case of
the first Payment Date after the Initial Closing Date, from
the closing of the Originator's business on September 26,
1997 to the end of such preceding month) (it being agreed
that, subject to SECTION 3.4, the Unpaid Balance of each
such Receivable shall be measured for this purpose only at
the time such Receivable was generated)
PD = Purchase Discount as measured on such Payment Date
where:
-----
Purchase
Discount = COFD + SD + LD
AND:
COFD = Cost of Funds Discount as measured on such Payment Date
SD = Spread Discount as measured on such Payment Date
CANADIAN PURCHASE AND SALE AGREEMENT - 4
LD = Loss Discount as measured on such Payment Date
SECTION 2.2 DEFINITIONS AND CALCULATIONS RELATED TO PURCHASE PRICE.
(a)COST OF FUNDS DISCOUNT. "COST OF FUNDS DISCOUNT," as measured on any
Payment Date, shall mean: (i) for purposes of the Initial Closing Date, $0, and
(ii) for purposes of each subsequent Payment Date, the sum of all of AFC's
financing costs and expenses related to this Agreement (without duplication of
any such costs and expenses allocated to the U.S. Purchase and Sale Agreement)
incurred during the month preceding such Payment Date, including, without
limitation, accrued Earned Yield, Commitment Fees, Program Fee, reserve costs,
tax payments and indemnity obligations of AFC for which AFC is not indemnified
pursuant to this Agreement; PROVIDED, that to the extent that any such costs and
expenses are payable by AFC in a currency other than Dollars, the amount of such
costs and expenses shall be converted into Dollars using the "buy rate" for U.S.
Dollars from the applicable currency as then most recently published in the
"Wall Street Journal."
(b)[Intentionally Omitted]
(c)SPREAD DISCOUNT. The "SPREAD DISCOUNT," as measured on any Payment Date,
shall be calculated in accordance with the following formula:
SD = AUB x S
where:
-----
SD = Spread Discount as measured on such Payment Date
AUB has the meaning assigned thereto in SECTION 2.1
S = Spread of two (2.0) basis points.
(d)LOSS DISCOUNT. The "LOSS DISCOUNT," as measured on any Payment Date,
shall be calculated in accordance with the following formula:
LD = AUB x LR
where:
-----
LD = Loss Discount as measured on such Payment Date
AUB has the meaning assigned thereto in SECTION 2.1
LR = (i) for purposes of the first three Payment Dates (including
the Initial Closing Date) the Average Loss Rate of the
Receivables generated by
CANADIAN PURCHASE AND SALE AGREEMENT - 5
the Originator, as measured on such Payment Date, and (ii)
for purposes of each Payment Date thereafter, the Loss Rate
of the Receivables generated by the Originator, as measured
on such Payment Date.
(e)AVERAGE LOSS RATE. The "AVERAGE LOSS RATE" of the Receivables, as
measured on any Payment Date, means one-tenth of: (i) the aggregate Unpaid
Balance of all such Receivables that were written off during the ten complete
months ending August 31, 1997 DIVIDED BY (ii) the monthly average Unpaid Balance
of all such Receivables generated by the Originator as measured for such
ten-month period.
(f)LOSS RATE. The "LOSS RATE" of the Receivables, as measured on any
Payment Date, means:(i) the aggregate Unpaid Balance of all such Receivables
that became more than 180 days past due (or, without duplication, were written
off) during the month preceding such Payment Date DIVIDED BY (ii) the Month-End
Balance of such Receivables for the month preceding such Payment Date.
(g)MONTH-END BALANCE. The "MONTH-END BALANCE," during any month, of the
Receivables means an amount equal to the aggregate Unpaid Balance of such
Receivables at the close of the Servicer's (or, for periods prior to the Initial
Closing Date, the Originator's) business on the last Business Day of such month.
(h)EXCHANGE RATE. For all purposes of this Agreement, all calculations in
respect of the Receivables originated by the Originator that are denominated in
Canadian Dollars shall be calculated as if such Canadian Dollars were converted
on the date of such calculation to United States Dollars at a spot rate for the
purchase of U.S. Dollars determined by the Chicago office of the Bank of
Montreal in its sole discretion.
ARTICLE III
PAYMENT OF PURCHASE PRICE
SECTION 3.1 INITIAL PURCHASE PRICE PAYMENT. On the terms and subject to
the conditions set forth in this Agreement, AFC agrees to pay to the Originator
the Purchase Price for the purchase to be made from the Originator on the
Initial Closing Date in cash out of the proceeds that AFC receives from the
Purchaser under the Receivables Purchase Agreement; PROVIDED, that AFC first
shall apply any such Canadian Dollar proceeds to the payment of the Purchase
Price relating to the Receivables denominated and payable in Canadian Dollars.
SECTION 3.2 SUBSEQUENT PURCHASE PRICE PAYMENTS. On each Payment Date
falling after the Initial Closing Date, on the terms and subject to the
conditions set forth in this Agreement, AFC shall pay to the Originator the
Purchase Price for the Receivables generated by the Originator during the
immediately preceding month in cash by depositing into such account as the
Originator shall
CANADIAN PURCHASE AND SALE AGREEMENT - 6
specify immediately available funds from monies then held by or on behalf of AFC
from Collections, solely to the extent that such monies do not constitute
Collections that are required to be segregated and held by the Servicer pursuant
to the Receivables Purchase Agreement or to be distributed to the Servicer
pursuant to the Receivables Purchase Agreement on the next Settlement Date or
otherwise required to be paid to the Servicer on the next Settlement Date
(collectively, the "AVAILABLE FUNDS"). Amounts paid to the Originator on account
of the Purchase Price shall be reconciled on each Settlement Date by
determining: (a) the Purchase Price payable pursuant to SECTION 2.1 with respect
to all Receivables sold by the Originator hereunder on each Payment Date and (b)
the sum of the amounts paid to the Originator pursuant to the foregoing sentence
for such Receivables and the amount of any reduction under SECTION 3.3 and 3.4
in the Purchase Price of such Receivables. If the amount described in CLAUSE (A)
is greater than the amount described in CLAUSE (B), AFC shall pay to the
Originator, to the extent of Available Funds, the amount of such excess in
immediately available funds on such Settlement Date. If the amount described in
CLAUSE (A) is less than the amount described in CLAUSE (B), the Originator shall
pay to AFC the shortfall in immediately available funds on such Settlement Date.
SECTION 3.3 SETTLEMENT AS TO SPECIFIC RECEIVABLES. If on the day of
purchase of any Receivable from the Originator hereunder any of the
representations or warranties relating to title set forth in SECTION 6.12 is not
true with respect to such Receivable, then the Originator forthwith shall
deliver to the Servicer for deposit into a Lock-box Account same day funds in an
amount equal to the Unpaid Balance of such Receivable for application by the
Servicer to the same extent as if Collections of such Unpaid Balance had
actually been received on such date; PROVIDED, that if AFC thereafter receives
payment on account of Collections due with respect to such Receivable, AFC
promptly shall deliver such funds to the Originator.
SECTION 3.4 SETTLEMENT AS TO DILUTION. Each Purchase Report (other than
the Purchase Report to be delivered on the Initial Closing Date) shall include,
in respect of the Receivables previously generated by the Originator, a
calculation of the aggregate net reduction in the aggregate Unpaid Balance of
such Receivables owed by particular Obligors on account of any defective,
rejected or returned goods or services, any cash discount, or any incorrect
▇▇▇▇▇▇▇▇, other adjustments, or setoffs in respect of any claims by the
Obligor(s) thereof against the Originator or any of its Affiliates (whether such
claims arise out of the same or a related or unrelated transaction), during the
most recent month, as indicated on the books of AFC (or, for periods prior to
the Initial Closing Date, the books of the Originator). The Purchase Price that
otherwise would be paid to the Originator on the Payment Date on which such
Purchase Report is delivered shall be decreased by the amount of such net
reduction. If there have been no purchases of Receivables (or insufficiently
large purchases of Receivables) from the Originator during the month immediately
preceding any Payment Date, any amount owed by which the Purchase Price payable
to the Originator would have been reduced pursuant to the immediately preceding
sentence shall be paid by the Originator in cash to AFC.
CANADIAN PURCHASE AND SALE AGREEMENT - 7
ARTICLE IV
[INTENTIONALLY OMITTED]
ARTICLE V
CONDITIONS OF PURCHASES
SECTION 5.1 CONDITIONS PRECEDENT TO PURCHASE. The effectiveness of this
Agreement is subject to the condition precedent that the Servicer (on AFC's
behalf) shall have received, on or before the date hereof, the following, each
(unless otherwise indicated) dated the date hereof, and each in form and
substance satisfactory to Amphenol (acting on AFC's behalf) and the Agent:
(a)an Originator Assignment Certificate in the form of EXHIBIT B from
the Originator, duly completed, executed and delivered by the Originator;
(b)a copy of the resolutions of the Board of Directors of each of the
Originator, Amphenol and AFC approving the transactions contemplated
hereby, certified by the respective Secretary or Assistant Secretary of
such Person;
(c)(i) a certificate of compliance, of status or of good standing, as
and to the extent applicable, with respect to the Originator issued as of a
recent date acceptable to the Servicer by the applicable governmental
authority of the Originator's jurisdiction of amalgamation and of each
province in which an Obligor is or is likely to be situated if the
Originator's registration as an extra-provincial corporation in such
Province is required as a condition precedent to the effectiveness or
enforceability of AFC's ownership interest in the Receivables and related
rights sold hereunder, and (ii) a certificate of good standing with respect
to each of Amphenol and AFC issued as of a recent date acceptable to the
Servicer by the Secretary of State of the jurisdiction of its
incorporation;
(d)a certificate of the Secretary or Assistant Secretary of: (i) the
Originator and (ii) except to the extent that the certificates delivered in
connection with the U.S. Purchase and Sale Agreement remain true and
correct, each of Amphenol and AFC, in each case certifying the names and
true signatures of the officers authorized on its behalf to sign the
Transaction Documents to be delivered by it (on which certificates the
Servicer and AFC may conclusively rely until such time as the Servicer
shall receive from any such Person a revised certificate meeting the
requirements of this SUBSECTION (D));
(e)copies of the articles of incorporation or other organizational
document of the Originator, together with the certificate of status issued
by the Ministry of Consumer and Commercial Relations as of a recent date
acceptable to the Servicer, together with a copy of the by-laws of the
Originator, each duly certified by the Secretary or an Assistant Secretary
of the Originator;
CANADIAN PURCHASE AND SALE AGREEMENT - 8
(f)originals (or if not available before the Initial Closing Date,
photocopies of such documents or statements accepted for filing) of
properly completed and duly executed and registered assignments (including,
without limitation, the Originator Assignment Certificate) and/or financing
statements, verification statements or other similar statements, with the
registration date, time and number stamped thereon, naming the Originator
as the debtor/seller and AFC as the secured party/purchaser (and originals
of properly completed and duly executed and registered financing change
statements, verification statements or other similar statements, with the
registration date, time and number stamped thereon, naming the Purchaser
(in respect of those jurisdictions in Canada that then have a Personal
Property Security Act in force) or Bank of Montreal Trust Company (as
Collateral Trustee), as assignee of AFC) of the Receivables generated by
the Originator as may be necessary or, in Servicer's or the Agent's
opinion, desirable under the UCC of all appropriate jurisdictions to
perfect AFC's ownership interest in all Receivables and such other rights,
accounts, instruments and moneys (including, without limitation, Related
Security) in which an ownership or security interest may be assigned to it
hereunder (PROVIDED, that no such registrations shall be required in Nova
Scotia, Newfoundland or New Brunswick as a condition to closing);
(g)(i) A written search report from a Person satisfactory to the
Servicer listing all effective financing statements that name the
Originator (under its current name or any previous name) as debtor or
assignor and that are filed in the jurisdictions in which filings were made
pursuant to the foregoing SUBSECTION (F), together with copies of such
financing statements (none of which, except for those described in the
foregoing SUBSECTION (F), shall cover any Receivable or any right related
to any Receivable that is of the type described in SECTION 1.1) which is to
be sold to AFC hereunder, and (ii) tax and judgment lien search reports
from a Person satisfactory to Servicer showing no evidence of such liens
filed against the Originator;
(h)evidence of the delivery of favorable opinions of: (i) ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, special Canadian counsel to Amphenol, AFC and the Originator, and
(ii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇, special Canadian counsel to the Agent, in form
and substance satisfactory to the Servicer and the Agent;
(i)evidence: (i) of the execution and delivery by each of the parties
thereto of each of the other Transaction Documents to be executed and
delivered in connection herewith and (ii) that each of the conditions
precedent to the execution, delivery and effectiveness of such other
Transaction Documents has been satisfied to Servicer's satisfaction;
(j)A certificate from an officer of the Originator to the effect that
the Servicer and the Originator have placed on the most recent, and have
taken all steps reasonably necessary to ensure that there shall be placed
on each subsequent, data processing report that it generates which are of
the type that a proposed purchaser or lender would use to evaluate the
Receivables, the following legend (or the substantive equivalent thereof):
"THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO AMPHENOL FUNDING
CANADIAN PURCHASE AND SALE AGREEMENT - 9
CORP. PURSUANT TO A CANADIAN PURCHASE AND SALE AGREEMENT, DATED AS OF
SEPTEMBER 26, 1997, AS AMENDED, AMONG AMPHENOL CORPORATION, AMPHENOL CANADA
CORP. AND AMPHENOL FUNDING CORP.; AND UNDIVIDED, FRACTIONAL OWNERSHIP
INTERESTS IN THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO POOLED
ACCOUNTS RECEIVABLE CAPITAL CORPORATION PURSUANT TO AN AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT, DATED AS OF MAY 19, 1997, AS AMENDED, AMONG
AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., AS THE AGENT"; and
(k)confirmation that: (i) all the Obligors of the Originator have been
instructed to deposit all Collections of Portfolio Receivables directly to
a post office box related to the relevant Lock-box Account with a Lock-box
Bank or (ii) if not so instructed, the Originator will transfer any
Collections that it receives to the Servicer (for AFC's account) pursuant
to SECTION 8.2(A).
SECTION 5.2 CERTIFICATION AS TO REPRESENTATIONS AND WARRANTIES. The
Originator, by accepting the Purchase Price related to each purchase of
Receivables generated by the Originator, shall be deemed to have certified that
the representations and warranties contained in ARTICLE VI are true and correct
on and as of such day, with the same effect as though made on and as of such day
(except to the extent that any such representation or warranty is expressed to
be made only as of an earlier date, in which case such representation or
warranty shall have been true and correct on and as of such earlier date).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR
In order to induce AFC to enter into this Agreement and to make purchases
hereunder, the Originator hereby makes with respect to itself, and Amphenol,
jointly and severally with the Originator, makes with respect to the Originator,
the representations and warranties set forth in this ARTICLE VI.
SECTION 6.1 ORGANIZATION AND GOOD STANDING. The Originator has been duly
organized and is validly existing as a corporation in good standing under the
laws of the province of Ontario, Canada, with power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted.
SECTION 6.2 DUE QUALIFICATION. The Originator is duly licensed or
qualified to do business as a foreign corporation in good standing in all
jurisdictions in which the ownership or lease of its property or the conduct of
its business requires such licensing or qualification (except to the extent
CANADIAN PURCHASE AND SALE AGREEMENT - 10
that the failure to be so licensed or qualified would not be reasonably likely
to have a Material Adverse Effect).
SECTION 6.3 POWER AND AUTHORITY; DUE AUTHORIZATION. The Originator has:
(a) all necessary power, authority and legal right: (i) to execute and deliver,
and perform its obligations under, each Transaction Document to which it is a
party and (ii) to generate, own, sell and assign Receivables on the terms and
subject to the conditions herein and therein provided, and (b) duly authorized
such execution and delivery and such sale and assignment and the performance of
such obligations by all necessary corporate action (including, if required, all
shareholder action). The Originator has duly executed and delivered this
Agreement and each other Transaction Document to which it is a party.
SECTION 6.4 VALID SALE; BINDING OBLIGATIONS. Each sale made by the
Originator pursuant to this Agreement shall constitute a valid sale, transfer
and assignment of Receivables to AFC, enforceable against creditors of, and
purchasers from, the Originator or a trustee in bankruptcy; and this Agreement
constitutes, and each other Transaction Document signed or to be signed by the
Originator, when duly executed and delivered, constitutes or will constitute, a
legal, valid and binding obligation of the Originator, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
SECTION 6.5 NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents, and the
fulfillment of the terms hereof or thereof, will not: (a) conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice, lapse of time or both) a default under: (i) the Originator's
articles or certificate of incorporation or by-laws, or (ii) any indenture, loan
agreement, mortgage, deed of trust or other agreement or instrument to which it
is a party or by which it or any of its property is bound, except for any
conflict, breach or default that would not be reasonably likely to have a
Material Adverse Effect, (b) result in the creation or imposition of any Adverse
Claim upon any of its properties pursuant to the terms of any such indenture,
loan agreement, mortgage, deed of trust or other agreement or instrument, other
than the Transaction Documents, or (c) violate any law or any order, rule or
regulation applicable to it of any court or of any federal, provincial,
territorial, state or foreign regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over it or any of its
properties, except for any violation that would not be reasonably likely to have
a Material Adverse Effect.
SECTION 6.6 PROCEEDINGS. Except as set forth in EXHIBIT C, there is no
action, suit, proceeding or investigation pending by or before any court,
regulatory body, arbitrator, administrative agency or other tribunal or
governmental instrumentality: (a) asserting the invalidity of any Transaction
Document, (b) seeking to prevent the issuance of the Originator's Originator
Assignment Certificate or the consummation of any of the transactions
contemplated by any Transaction Document or (c) seeking any determination or
ruling that is reasonably likely to have a Material Adverse Effect.
CANADIAN PURCHASE AND SALE AGREEMENT - 11
SECTION 6.7 BULK SALES ACTS. No transaction contemplated hereby requires
compliance with, or will be subject to avoidance under, any bulk sales act or
similar law.
SECTION 6.8 GOVERNMENT APPROVALS. Except for the filing of the
assignments, financing statements, financing change statements and other similar
statements referred to in ARTICLE V, all of which, at the time required in
ARTICLE V, shall have been duly made and shall be in full force and effect, 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 Originator's
due execution, delivery and performance of any Transaction Document to which it
is a party, except where the failure to receive or make such authorization,
approval, action, notice or filing would not be reasonably likely to have a
Material Adverse Effect.
SECTION 6.9 MATERIAL ADVERSE EFFECT. Since December 31, 1996, no event has
occurred that has had, or is reasonably likely to have, a Material Adverse
Effect.
SECTION 6.10 LICENSES, CONTINGENT LIABILITIES AND LABOR CONTROVERSIES.(a)
The Originator has not failed to obtain any licenses, permits, franchises or
other governmental authorizations necessary to the ownership of its properties
or to the conduct of its business, which violation or failure to obtain would be
reasonably likely to have a Material Adverse Effect.
(b)There are no labor controversies pending against the Originator that
have had (or are reasonably likely to have) a Material Adverse Effect.
SECTION 6.11 MARGIN REGULATIONS. No use of any funds acquired by the
Originator under this Agreement will conflict with or contravene any of
Regulations G, T, U and X promulgated by the Board of Governors of the Federal
Reserve System from time to time, or any similar laws, rules or regulations
applicable to Canadian corporations.
SECTION 6.12 QUALITY OF TITLE.(a) Each Receivable of the Originator
(together with the Related Security for such Receivable) which is to be sold to
AFC hereunder is or shall be owned by the Originator free and clear of any
Adverse Claim, except as provided herein and in the Receivables Purchase
Agreement. Subject to SECTION 7.1(J), whenever AFC makes a purchase hereunder,
it shall have acquired and shall continue to have maintained a valid and
perfected ownership interest (free and clear of any Adverse Claim) in all
Receivables generated by the Originator and all Collections related thereto, and
in the Originator's entire right, title and interest in and to the Related
Security with respect thereto.
(b)No effective financing statement, registration, recording, filing or
other instrument similar in effect covering any Receivable generated by the
Originator or any right related to any such Receivable that is of the type
described in SECTION 1.1 is on file in any recording office except such as may
be filed in favor of AFC or the Originator, as the case may be, in accordance
with this Agreement or in favor of the Purchaser in accordance with the
Receivables Purchase Agreement.
CANADIAN PURCHASE AND SALE AGREEMENT - 12
SECTION 6.13 ACCURACY OF INFORMATION. All factual written information
heretofore or contemporaneously furnished (and prepared) by the Originator to
AFC, the Purchaser or the Agent for purposes of or in connection with any
Transaction Document or any transaction contemplated hereby or thereby is, and
all other such factual written information hereafter furnished (and prepared) by
the Originator to AFC, the Purchaser or the Agent pursuant to or in connection
with any Transaction Document will be, true and accurate in every material
respect on the date as of which such information is dated or certified. No
information contained in any report delivered pursuant to SECTION 7.2 or in any
Purchase Report shall be incomplete by omitting to state any material fact
necessary to make such information not misleading on the date as of which such
information is dated or certified.
SECTION 6.14 OFFICES. The Originator's principal place of business and
chief executive office is located at the address set forth under the
Originator's signature hereto, and the offices where the Originator keeps all
its books, records and documents evidencing its Receivables, the related
Contracts and all other agreements related to such Receivables are located at
the addresses specified in EXHIBIT D (or at such other locations, notified to
the Servicer and the Agent in accordance with SECTION 7.1(F), in jurisdictions
where all action required by SECTION 8.3 has been taken and completed).
SECTION 6.15 TRADE NAMES. The Originator does not use any trade name other
than its actual corporate name and the trade names set forth in EXHIBIT E.
Except as set forth in EXHIBIT E, the Originator has not been known by any legal
name other than its corporate name as of the date hereof, nor has the Originator
been the subject of any merger or other corporate reorganization.
SECTION 6.16 TAXES. The Originator has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION 6.17 COMPLIANCE WITH APPLICABLE LAWS. The Originator is in
compliance with the requirements of all applicable laws, rules, regulations and
orders of all governmental authorities, a breach of any of which, individually
or in the aggregate, would be reasonably likely to have a Material Adverse
Effect.
ARTICLE VII
COVENANTS OF THE ORIGINATOR
SECTION 7.1 AFFIRMATIVE COVENANTS. From the date hereof until the first
day following the Purchase and Sale Termination Date, the Originator shall,
unless the Servicer (on behalf of AFC) shall otherwise consent in writing:
CANADIAN PURCHASE AND SALE AGREEMENT - 13
(a)COMPLIANCE WITH LAWS, ETC. Comply in all material respects with all
applicable laws, rules, regulations and orders with respect to the
Receivables generated by it and the Contracts and other agreements related
thereto except where the failure to so comply would not materially and
adversely affect the collectibility of such Receivables or the rights of
AFC hereunder.
(b)PRESERVATION OF CORPORATE EXISTENCE. Preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction
of its incorporation, and qualify and remain qualified in good standing as
a foreign corporation in each jurisdiction where the failure to preserve
and maintain such existence, rights, franchises, privileges and
qualification would be reasonably likely to have a Material Adverse Effect.
(c)RECEIVABLES REVIEWS. (i) At any time and from time to time during
regular business hours, and upon two Business Days' prior written notice so
long as no Termination Event is continuing, permit AFC or the Agent, or
their respective agents or representatives, (and/or, if the Agent shall
have consented (which consent shall not be unreasonably withheld), the
Surety Bond Provider or its agents or representatives): (A) to examine and
make copies of and abstracts from all books, records and documents
(including, without limitation, computer tapes and disks) in possession or
under the control of the Originator relating to Receivables, including,
without limitation, the related Contracts and purchase orders and other
agreements related thereto, and (B) to visit the offices and properties of
the Originator for the purpose of examining such materials described in
CLAUSE (A) above, and to discuss matters relating to Receivables originated
by it or the performance hereunder with any of the officers or employees of
the Originator having knowledge of such matters, and (ii) without limiting
the foregoing CLAUSE (I), from time to time on request of the Agent (given
not more than once in each calendar year so long as no Purchase and Sale
Termination Event shall have occurred and be continuing), permit certified
public accountants or other auditors acceptable to AFC and the Agent to
conduct, at AFC's expense (so long as such expenses do not exceed $15,000
in any calendar year), a review of the Originator's books and records with
respect to such Receivables.
(d)KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing Receivables it generates in the
event of the destruction of the originals thereof), and keep and maintain
all documents, books, records and other information reasonably necessary or
advisable for the collection of such 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).
(e)PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS. Timely
and fully perform and comply in all material respects with all the
provisions, covenants and other promises required to be observed by it
under the Contracts and all other agreements related to the Receivables
that it generates.
CANADIAN PURCHASE AND SALE AGREEMENT - 14
(f)LOCATION OF RECORDS. Keep its principal place of business and chief
executive office, and the offices where it keeps its records concerning or
related to Receivables, at the address(es) referred to in EXHIBIT D or,
upon 15 days' prior written notice to AFC and the Agent, at such other
locations in jurisdictions where all action required by SECTION 8.3 shall
have been taken and completed.
(g)CREDIT AND COLLECTION POLICIES. Comply in all material respects
with its Credit and Collection Policy in connection with the Receivables
that it generates and all Contracts and other agreements related thereto.
(h)SEPARATE CORPORATE EXISTENCE OF AFC. Take such actions as shall be
required in order that:
(i)AFC's operating expenses will not be paid by the Originator,
(ii)the Originator's books and records will be maintained
separately from those of AFC,
(iii)any financial statements of the Originator that are
consolidated to include AFC will contain detailed notes clearly
stating that AFC is a separate corporate entity and has sold ownership
interests in AFC's accounts receivable,
(iv)the Originator will strictly observe corporate formalities in
its dealing with AFC, and funds or other assets of AFC will not be
commingled with those of the Originator,
(v)AFC shall pay to the appropriate Amphenol Person the marginal
increase (or, in the absence of such increase, the market amount of
its portion) of the premium payable with respect to any insurance
policy that covers AFC and any other Amphenol Person, but AFC shall
not, directly or indirectly, be named or enter into an agreement to be
named, as a direct or contingent beneficiary or loss payee, under any
such insurance policy, with respect to any amounts payable due to
occurrences or events related to any other Amphenol Person,
(vi)the Originator will maintain arm's-length relationships with
AFC, and the Originator will be compensated at market rates for any
services (other than the servicing of the Receivables) it renders or
otherwise furnishes to AFC, and
(vii)the Originator will not be, and will not hold itself out to
be, responsible for the debts of AFC or the decisions or actions in
respect of the daily business and affairs of AFC.
(i)POST OFFICE BOXES. Within 60 days after the date hereof, deliver to
the Servicer (on behalf of AFC) a certificate from an authorized officer of
the Originator to the effect that:
CANADIAN PURCHASE AND SALE AGREEMENT - 15
(i) the name of the renter of all post office boxes into which Collections
may from time to time be mailed have been changed to the name of AFC
(unless such post office boxes are in the name of the relevant Lock-box
Banks) and (ii) all relevant postmasters have been notified that each of
the Servicer (and each Servicer Person) and the Agent is authorized to
collect mail delivered to such post office boxes (unless such post office
boxes are in the name of the relevant Lock-box Banks).
(j)MARITIME RECORDATION. Within ten days after the aggregate Unpaid
Balance of Receivables the Obligors of which are located in Nova Scotia,
Newfoundland and New Brunswick becomes 1% or greater of the aggregate
Unpaid Balance of all of the Receivables, the Originator shall file
properly completed and duly executed assignments (including, without
limitation, the Originator Assignment Certificate) and/or financing
statements, verification statements or other similar statements naming the
Originator as the debtor/seller and AFC as the secured party/purchaser of
the Receivables generated by the Originator as may be necessary or, in the
Servicer's or the Agent's opinion, desirable under the UCC of such
provinces to perfect AFC's ownership interest in all Receivables and such
other rights, accounts, instruments and moneys (including, without
limitation, Related Security) in which an ownership or security interest
may be assigned to it hereunder.
SECTION 7.2 REPORTING REQUIREMENTS. From the date hereof until the first
day following the Purchase and Sale Termination Date, the Originator shall,
unless the Servicer (on behalf of AFC) shall otherwise consent in writing,
furnish to AFC and the Agent (with a copy for Purchaser) the following:
(a)PURCHASE AND SALE TERMINATION EVENTS. As soon as possible after the
occurrence of, and in any event within three Business Days after the
occurrence of, each Purchase and Sale Termination Event or each Unmatured
Purchase and Sale Termination Event in respect of the Originator, a written
statement of the chief financial officer or chief accounting officer of the
Originator describing such Purchase and Sale Termination Event or Unmatured
Purchase and Sale Termination Event and the action that the Originator
proposes to take with respect thereto, in each case in reasonable detail,
(b)PROCEEDINGS; NAME CHANGE. (i) As soon as possible, and in any event
within three Business Days after the Originator otherwise has knowledge
thereof, written notice of: (A) any action, suit, proceeding or
investigation of the type described in SECTION 6.6 not previously disclosed
to AFC and (B) all material adverse developments that have occurred with
respect to any previously disclosed actions, suits, proceedings and
investigations, and (ii) as soon as possible, but at least 30 days, before
any change in the Originator's name, written notice of such change, and
(c)OTHER. Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables or the conditions
or operations, financial or otherwise, of the Originator as AFC, the
Purchaser or the Agent may from time to time reasonably
CANADIAN PURCHASE AND SALE AGREEMENT - 16
request in order to protect the interests of AFC, the Purchaser or the
Agent under or as contemplated by the Transaction Documents.
SECTION 7.3 NEGATIVE COVENANTS. From the date hereof until the date
following the Purchase and Sale Termination Date, the Originator agrees that,
unless Servicer (on behalf of AFC) shall otherwise consent in writing, it shall
not:
(a)SALES, LIENS, ETC. Except as otherwise provided herein or in any
other Transaction Document, sell, assign (by operation of law or otherwise)
or otherwise dispose of, or create or suffer to exist any Adverse Claim
upon or with respect to, any Receivable or related Contract or Related
Security, or any interest therein, or any Collections thereon, or assign
any right to receive income in respect thereof,
(b)EXTENSION OR AMENDMENT OF RECEIVABLES. Except as otherwise
permitted in Section 8.02(c) of the Receivables Purchase Agreement, extend,
amend or otherwise modify the terms of any Receivable generated by it in
any material respect, or amend, modify or waive, in any material respect,
any term or condition of any Contract related thereto (which term or
condition relates to payments under, or the enforcement of, such Contract),
(c)CHANGE IN BUSINESS OR CREDIT AND COLLECTION POLICY. Make any change
in the character of its business or materially alter its Credit and
Collection Policy, which change would, in either case, be reasonably likely
to have a Material Adverse Effect,
(d)RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES OR CHATTEL
PAPER. Take any action to cause or permit any Receivable generated by it to
become evidenced by any "instrument" or "chattel paper" (as defined in the
applicable UCC), and
(e)MERGERS, ACQUISITIONS, SALES, ETC. (i) Be a party to any merger or
consolidation, except: (A) a merger or consolidation involving Amphenol
where Amphenol is the surviving corporation or (B) a merger or
consolidation among two or more Originators (as defined in the U.S.
Purchase and Sale Agreement and including, without limitation, Amphenol),
or (ii) directly or indirectly sell, transfer, assign, convey or lease: (A)
whether in one or a series of transactions, all or substantially all of its
assets, except to another Originator (as defined in the U.S. Purchase and
Sale Agreement) (including, without limitation, Amphenol), or (B) any
Receivables or any interest therein (other than pursuant to this
Agreement).
SECTION 7.4 LOCK-BOX BANKS. From the date hereof until the date following
the Purchase and Sale Termination Date, the Originator agrees that it shall not
make any changes in its instructions to Obligors regarding Collections or add or
terminate any Lock-box Bank unless the requirements of Section 7.03(d) of the
Receivables Purchase Agreement have been met.
CANADIAN PURCHASE AND SALE AGREEMENT - 17
ARTICLE VIII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
SECTION 8.1 RIGHTS OF AFC. The Originator hereby authorizes AFC, the
Servicer or their respective designees to take any and all steps in the
Originator's name necessary or desirable, in their respective determination, to
collect all amounts due under any and all Receivables, including, without
limitation, indorsing the name of the Originator on checks and other instruments
representing Collections and enforcing such Receivables and the provisions of
the related Contracts that concern payment and/or enforcement of rights to
payment.
SECTION 8.2 RESPONSIBILITIES OF THE ORIGINATOR. Anything herein to the
contrary notwithstanding:
(a)the Originator agrees to direct its Obligors to make payments of
Receivables directly to a post office box related to the relevant Lock-box
Account at a Lock-box Bank. The Originator further agrees to transfer any
Collections that it receives directly to the Servicer (for AFC's account)
within one Business Day of receipt thereof, and agrees that all such
Collections shall be deemed to be received in trust for AFC and shall be
maintained and segregated separate and apart from all other funds and
monies of the Originator until transfer of such Collections to the
Servicer,
(b)the Originator shall perform its obligations hereunder, and the
exercise by AFC or its designee of any of its rights hereunder shall not
relieve the Originator from such obligations,
(c)neither AFC, the Servicer, the Purchaser nor the Agent shall have
any obligation or liability to any Obligor or any other third Person with
respect to any Receivables, Contracts related thereto or any other related
agreements, nor shall AFC, the Servicer, the Purchaser or the Agent be
obligated to perform any of the obligations of the Originator thereunder,
and
(d)the Originator hereby grants to the Servicer an irrevocable power
of attorney, with full power of substitution, coupled with an interest, to
take in the name of the Originator all steps necessary or advisable to
indorse, negotiate or otherwise realize on any writing or other right of
any kind held or transmitted by such Originator or transmitted or received
by AFC (whether or not from the Originator) in connection with any
Receivable.
SECTION 8.3 FURTHER ACTION EVIDENCING PURCHASES. The Originator agrees
that from time to time, at its expense, it will promptly execute and deliver all
further instruments and documents, and take all further action that the Servicer
may reasonably request in order to perfect, protect or more fully evidence the
Receivables (and the rights related thereto that are of the type described in
SECTION 1.1) purchased by AFC hereunder, or to enable AFC to exercise or enforce
any of its rights
CANADIAN PURCHASE AND SALE AGREEMENT - 18
hereunder or under any other Transaction Document. Without limiting the
generality of the foregoing, upon the request of the Servicer, the Originator
will:
(a)execute and file such financing or financing change statements or
other similar statements, or amendments thereto or assignments thereof, and
such other instruments or notices as may be necessary or appropriate, and
(b)▇▇▇▇ the master data processing records that evidence or list (i)
such Receivables and (ii) related Contracts with the legend set forth in
SECTION 5.1(J).
The Originator hereby authorizes AFC or its designee to file one or more
financing or financing change statements, and amendments thereto and assignments
thereof, relative to all or any of the Receivables (and the rights related
thereto that are of the type described in SECTION 1.1) now existing or hereafter
generated by the Originator. If the Originator fails to perform any of its
agreements or obligations under this Agreement, AFC or its designee may (but
shall not be required to) itself perform, or cause performance of, such
agreement or obligation, and the expenses of AFC or its designee incurred in
connection therewith shall be payable by the Originator as provided in
SECTION 10.1.
SECTION 8.4 APPLICATION OF COLLECTIONS. Any payment by an Obligor in
respect of any indebtedness owed by it to the Originator shall, except as
otherwise specified by such Obligor or otherwise required by contract or law and
unless otherwise instructed by AFC or the Agent, be applied as a Collection of
any Receivable or Receivables of such Obligor to the extent of any amounts then
due and payable thereunder before being applied to any other indebtedness of
such Obligor.
ARTICLE IX
PURCHASE AND SALE TERMINATION EVENTS
SECTION 9.1 PURCHASE AND SALE TERMINATION EVENTS. Each of the following
events or occurrences described in this SECTION 9.1 shall constitute a "PURCHASE
AND SALE TERMINATION EVENT":
(a)a Termination Event shall have occurred and, in the case of a
Termination Event (other than one described in Section 9.01(e), (g), (h) or
(i) of the Receivables Purchase Agreement), the Agent, at the request (or
with the consent) of the Purchaser, shall have declared the Commitment
Termination Date to have occurred, or
(b)the Originator shall fail to make any payment or deposit to be made
by it hereunder when due and such failure shall remain unremedied for five
(5) Business Days, or
CANADIAN PURCHASE AND SALE AGREEMENT - 19
(c)any representation or warranty made or deemed to be made by the
Originator (or any of its officers) under or in connection with this
Agreement, any other Transaction Documents or any other information or
report delivered pursuant hereto or thereto shall prove to have been false
or incorrect in any material respect when made or deemed made, or
(d)the Originator shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed and such failure shall remain unremedied for 30
calendar days after written notice thereof shall have been given by the
Servicer to the Originator,
(e)an Event of Bankruptcy shall have occurred with respect to the
Originator or AFC, or
(f)AFC shall fail to make any payment to the Originator in respect of
the Purchase Price required hereunder, and such failure shall remain
unremedied for 30 days after notice thereof to AFC, or
(g)any Canadian taxes shall be required to be withheld on any payment
pursuant to SECTION 10.3.
SECTION 9.2 REMEDIES.
(a)OPTIONAL TERMINATION. Upon the occurrence of a Purchase and Sale
Termination Event, but subject to the proviso in SECTION 1.5, AFC (and not the
Servicer) shall have the option by notice to the Originator (with a copy to the
Agent) to declare the Purchase and Sale Termination Date to have occurred.
(b)REMEDIES CUMULATIVE. Upon any termination of the Purchase Facility
pursuant to this Section, AFC shall have, in addition to all other rights and
remedies under this Agreement or otherwise, all other rights and remedies
provided under the UCC of each applicable jurisdiction and other applicable
laws, which rights shall be cumulative. Without limiting the foregoing, the
occurrence of the Purchase and Sale Termination Date shall not deny AFC any
remedy in addition to termination of the Purchase Facility to which AFC may be
otherwise appropriately entitled, whether at law or equity.
ARTICLE X
INDEMNIFICATION
SECTION 10.1 INDEMNITIES BY AMPHENOL AND THE ORIGINATOR. Without limiting
any other rights that AFC may have hereunder or under applicable law, the
Originator, severally and for itself alone, and Amphenol, jointly and severally
with the Originator, hereby agrees to indemnify AFC
CANADIAN PURCHASE AND SALE AGREEMENT - 20
and each of its officers, directors, employees and agents (each of the foregoing
Persons being individually called a "PURCHASE AND SALE INDEMNIFIED PARTY"),
forthwith on demand, from and against any and all damages, losses, claims,
judgments, liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all of the foregoing being collectively
called "PURCHASE AND SALE INDEMNIFIED AMOUNTS") awarded against or incurred by
any of them arising out of or as a result of the failure of the Originator to
perform its obligations under this Agreement, any other Transaction Document or
arising out of the claims asserted against a Purchase and Sale Indemnified Party
relating to the transactions contemplated herein or therein or the use of
proceeds herefrom or therefrom; EXCLUDING, HOWEVER: (i) Purchase and Sale
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Purchase and Sale Indemnified Party, (ii) any
indemnification that has the effect of recourse for non-payment of the
Receivables to any Amphenol Person (except as otherwise specifically provided
under this Section) and (iii) any tax based upon or measured by net income or
gross receipts. Without limiting the foregoing, the Originator, severally and
for itself alone, and Amphenol, jointly and severally with the Originator,
indemnifies each Purchase and Sale Indemnified Party for Purchase and Sale
Indemnified Amounts relating to or resulting from:
(a)the transfer by the Originator of an interest in any Receivable to
any Person other than AFC,
(b)the breach of any representation or warranty made by the Originator
(or any of its officers) under or in connection with this Agreement or any
other Transaction Document, or any information or report delivered by the
Originator pursuant hereto or thereto that shall have been false or
incorrect in any material respect when made or deemed made,
(c)the failure by the Originator to comply with any applicable law,
rule or regulation with respect to any Receivable generated by the
Originator or the related Contract, or the nonconformity of any Receivable
generated by the Originator or the related Contract with any such
applicable law, rule or regulation,
(d)the failure to vest and maintain vested in AFC an ownership
interest in the Receivables generated by the Originator free and clear of
any Adverse Claim, other than an Adverse Claim arising solely as a result
of an act of AFC, whether existing at the time of the purchase of such
Receivables or at any time thereafter,
(e)the failure to file, or any delay in filing, financing statements
or other similar instruments or documents under the UCC of any applicable
jurisdiction or other applicable laws with respect to any Receivables or
purported Receivables generated by the Originator, whether at the time of
any purchase or at any subsequent time,
(f)any dispute, claim, offset or defense (other than discharge in
bankruptcy) of the Obligor to the payment of any Receivable or purported
Receivable generated by the Originator (including, without limitation, a
defense based on such Receivable or the related Contract not being a legal,
valid and binding obligation of such Obligor enforceable against
CANADIAN PURCHASE AND SALE AGREEMENT - 21
it in accordance with its terms), or any other claim resulting from the
sale of the merchandise or services related to any such Receivable or the
furnishing of or failure to furnish such merchandise or services,
(g)any product liability claim arising out of or in connection with
merchandise or services that are the subject of any Receivable generated by
the Originator,
(h)any tax or governmental fee or charge (other than any tax excluded
pursuant to CLAUSE (III) in the proviso to the preceding sentence), all
interest and penalties thereon or with respect thereto, and all
out-of-pocket costs and expenses, including the reasonable fees and
expenses of counsel in defending against the same, which may arise by
reason of the purchase or ownership of the Receivables generated by the
Originator or any Related Security connected with any such Receivables, and
(i)any losses resulting from the U.S. Dollar-equivalent value of
collections of any Canadian Dollar-denominated Receivable being less than
the anticipated full value of such collections on the date such Receivable
was added to the Portfolio solely as a result of a weakening of the
Canadian Dollar versus the U.S. Dollar from such date).
If for any reason the indemnification provided above in this Section is
unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold
such Purchase and Sale Indemnified Party harmless, then the Originator,
severally and for itself alone, and Amphenol, jointly and severally with the
Originator, shall contribute to the amount paid or payable by such Purchase and
Sale Indemnified Party to the maximum extent permitted under applicable law.
SECTION 10.2 CURRENCY INDEMNITY. If for the purposes of obtaining judgment
in any court or tribunal it becomes necessary to convert any amount due under
this Agreement in one currency into another currency, then the conversion shall
be made at the "buy rate" for such currency as most recently published in the
"Wall Street Journal" on the date on which the judgment is given. If such rate
prevailing on the date of payment is different from the prevailing rate on the
date on which the judgment is given, the Originator shall pay such additional
amount (if any) as may be necessary to ensure that the amount paid on the date
of payment is the amount in such other currency that, when converted at the rate
prevailing on the date of payment, is the amount then due under this Agreement
in the currency in which it is due, together with all costs, charges and
expenses of conversion. Any amount due from the Originator under this Section
shall be due as a separate obligation and shall not be affected by judgment
being obtained for any other sum due under or in respect of this Agreement.
SECTION 10.3 TAXES AND DEDUCTIONS. Any and all payments to be made by the
Servicer or the Originator under this Agreement shall be made in full, without
set-off or counterclaim, and free of and without deduction or withholding for or
on account of any present or future Canadian taxes of any nature whatsoever
imposed or levied upon or in respect of any such payments; PROVIDED, that if the
Servicer or the Originator shall be required by law to deduct or withhold any
Canadian taxes from or in respect of any such payment, then:
CANADIAN PURCHASE AND SALE AGREEMENT - 22
(a) the payment or sum payable shall be increased as may be necessary
so that after making all required deductions or withholdings (including
deductions or withholdings applicable to additional amounts paid under this
Section) the recipient of such payment shall receive an amount equal to the
amount that it would have received if no deduction or withholding had been
made, and
(b) the Servicer or the Originator, as applicable, shall pay the full
amount deducted or withheld to the relevant taxation or other authority in
accordance with applicable law.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 AMENDMENTS, WAIVERS, ETC.(a) The provisions of this Agreement
may from time to time be amended, modified or waived if such amendment,
modification or waiver is in writing and consented to by AFC, the Servicer and
the Originator (with respect to an amendment) or by AFC (with respect to a
waiver or consent by it).
(b)No failure or delay on the part of AFC, the Servicer, the Originator or
any third party beneficiary in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on AFC, the
Servicer, Amphenol or the Originator in any case shall entitle it to any notice
or demand in similar or other circumstances. No waiver or approval by AFC or the
Servicer under this Agreement shall, except as may otherwise be stated in such
waiver or approval, be applicable to subsequent transactions. No waiver or
approval under this Agreement shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
(c)The Transaction Documents contain a final and complete integration of
all prior expressions by the parties hereto with respect to the subject matter
thereof and shall constitute the entire agreement among the parties hereto with
respect to the subject matter thereof, superseding all prior oral or written
understandings.
SECTION 11.2 NOTICES, ETC. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by facsimile
(to be followed by mail) to the intended party at the address or facsimile
number of such party set forth under its name on the signature pages hereof or
at such other address or facsimile number as shall be designated by such party
in a written notice to the other parties hereto. All such notices and
communications shall be effective: (i) if personally delivered, when received,
and (ii) if transmitted by facsimile, when sent, receipt confirmed by telephone
or electronic means.
CANADIAN PURCHASE AND SALE AGREEMENT - 23
SECTION 11.3 CUMULATIVE REMEDIES. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. Without limiting
the foregoing, Amphenol and the Originator hereby authorize AFC, at any time and
from time to time, to the fullest extent permitted by law, to setoff, against
any obligations of the Originator to AFC arising in connection with the
Transaction Documents (including, without limitation, amounts payable pursuant
to SECTION 10.1) that are then due and payable or that are not then due and
payable but are accruing in respect of the then current Settlement Period, any
and all indebtedness at any time owing by AFC to or for the credit or the
account of Amphenol or the Originator.
SECTION 11.4 BINDING EFFECT; ASSIGNABILITY. This Agreement shall be
binding upon and inure to the benefit of AFC, Amphenol and the Originator and
their respective successors and permitted assigns. The Originator may not assign
any of its rights hereunder or any interest herein without the prior written
consent of AFC, except as otherwise herein specifically provided. This Agreement
shall create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until such
time as the parties hereto shall agree. The rights and remedies with respect to
any breach of any representation and warranty made by the Originator pursuant to
ARTICLE VI and the indemnification and payment provisions of ARTICLE X and
SECTION 11.6 shall be continuing and shall survive any termination of this
Agreement.
SECTION 11.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE PROVINCE OF ONTARIO AND THE
FEDERAL LAWS OF CANADA APPLICABLE THEREIN, WITHOUT REGARD TO ANY PRINCIPLE OF
CONFLICTS OF LAW.
SECTION 11.6 COSTS, EXPENSES AND TAXES. In addition to the obligations of
the Originator under ARTICLE X, the Originator, severally and for itself alone,
and Amphenol, jointly and severally with the Originator, agrees to pay on
demand:
(a)all costs and expenses in connection with the enforcement of this
Agreement, the Originator Assignment Certificates and the other Transaction
Documents; and
(b)all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of
this Agreement or the other Transaction Documents to be delivered
hereunder, and agrees to indemnify each Purchase and Sale Indemnified Party
against any liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees.
SECTION 11.7 SUBMISSION TO JURISDICTION; PROCESS AGENT. (A) EACH PARTY
HERETO HEREBY IRREVOCABLY: (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ILLINOIS OR UNITED STATES FEDERAL COURTS SITTING IN CHICAGO, ILLINOIS, OVER ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (B)
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (C) WAIVES, TO THE
FULLEST EXTENT IT MAY
CANADIAN PURCHASE AND SALE AGREEMENT - 24
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING; (D) IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND
ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH
PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION 11.2 (OR ALSO, WITH
RESPECT TO THE ORIGINATOR, TO AMPHENOL PURSUANT TO CLAUSE (B)); AND (E) AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS SECTION 11.7 SHALL AFFECT AFC'S RIGHT TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION
OR PROCEEDING AGAINST AMPHENOL, ANY ORIGINATOR OR ITS RESPECTIVE PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTIONS.
(b) The Originator hereby irrevocably appoints Amphenol as its agent to
receive, on behalf of the Originator and its property, service of copies of the
summons and complaint and any other process that may be served in any such
action or proceeding. Such service may be made by mailing or delivering a copy
of such process to the Originator in care of Amphenol at Amphenol's address
specified in SECTION 11.2, and the Originator hereby irrevocably authorizes and
directs Amphenol to accept such service on its behalf. Amphenol agrees that a
final judgment in any action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Amphenol hereby accepts such appointment and agrees that it
shall accept any such service and promptly forward such service to the
Originator.
SECTION 11.8 WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES
THAT: (A) ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY AND (B) ANY PARTY HERETO (OR ANY ASSIGNEE OR THIRD PARTY
BENEFICIARY OF THIS AGREEMENT) MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER
PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
SECTION 11.9 CAPTIONS AND CROSS REFERENCES; INCORPORATION BY REFERENCE.
The various captions (including, without limitation, the table of contents) in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in this
Agreement to any underscored Section or Exhibit are to such Section
CANADIAN PURCHASE AND SALE AGREEMENT - 25
or Exhibit of this Agreement, as the case may be. APPENDIX A and the Exhibits
hereto are hereby incorporated by reference into and made a part of this
Agreement.
SECTION 11.10 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.
SECTION 11.11 ACKNOWLEDGMENT AND AGREEMENT. (a) By execution below,
Amphenol and the Originator expressly acknowledge and agree that all of AFC's
rights, title and interests in, to and under this Agreement shall be assigned by
AFC pursuant to the Receivables Purchase Agreement, and Amphenol and the
Originator consents to such assignment.
(b) By execution below, the Originator acknowledges that the Purchaser and
the Agent have entered into the Receivables Purchase Agreement in reliance upon
AFC's identity as a legal entity separate from the Originator.
SECTION 11.12 NO PROCEEDINGS. The Originator hereby covenants and agrees
that it will not institute against AFC, or join any other Person in instituting
against AFC, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under United States or Canadian federal or state,
provincial or territorial bankruptcy, insolvency, arrangement or similar law so
long as any Commercial Paper Notes issued by the Purchaser shall be outstanding
or there shall not have elapsed one year plus one day since the last day on
which any such Commercial Paper Notes shall have been outstanding.
CANADIAN PURCHASE AND SALE AGREEMENT - 26
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
AMPHENOL FUNDING CORP.
By:___________________________________
Name:_______________________________
Title:______________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
AMPHENOL CORPORATION
By:___________________________________
Name:_______________________________
Title:______________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
AMPHENOL CANADA CORP.
By:___________________________________
Name:_______________________________
Title:______________________________
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Treasurer
with copies of any notices to:
Amphenol Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CANADIAN PURCHASE AND SALE AGREEMENT - 27
APPENDIX A
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in the Canadian Purchase and Sale
Agreement or the Receivables Purchase Agreement, as the case may be, the
following terms have the meanings as indicated:
"ADVERSE CLAIM" means a lien, security interest, charge or encumbrance, or
other right or claim of any Person.
"AFC" has the meaning set forth in the preamble to the Canadian Purchase
and Sale Agreement.
"AFFILIATE" when used with respect to a Person means any other Person
controlling, controlled by or under common control with such Person.
"AGENT" has the meaning set forth in the preamble to the Receivables
Purchase Agreement.
"AGGREGATE INVESTMENT" means the sum of the U.S. Dollar amounts of all
Investments in all Participations.
"AMPHENOL" has the meaning set forth in the preamble to the Receivables
Purchase Agreement.
"AMPHENOL PERSON" means each of Amphenol, the Originator and each other
Subsidiary or Affiliate of Amphenol.
"AVAILABLE FUNDS" has the meaning set forth in Section 3.2 of the Canadian
Purchase and Sale Agreement.
"AVERAGE LOSS RATE" has the meaning set forth in Section 2.2(e) of the
Canadian Purchase and Sale Agreement.
"BANKS" means and includes Bank of Montreal and the various financial
institutions as are, or may become, parties to the Liquidity Agreement, as the
lenders thereunder, and any other or additional bank or other financial
institution hereafter extending credit to or for the account of Purchaser or
having a commitment to do either of the foregoing under the Liquidity Agreement.
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
both: (a) the Agent at its office in Chicago, Illinois is open for business and
(b) commercial banks in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ are not
authorized or required to be closed for business.
DEFINITIONS 1
"CANADIAN PURCHASE AND SALE AGREEMENT" means that certain Canadian Purchase
and Sale Agreement, dated as of September 26, 1997, among Seller, the Originator
and the Servicer, as the same may be amended, supplemented, amended and restated
or otherwise modified from time to time in accordance with the terms thereof and
with the Receivables Purchase Agreement.
"COLLATERAL TRUSTEE" means Bank of Montreal Trust Company, as trustee under
the Trust and Security Agreement, dated as of December 20, 1991, between the
Purchaser, Bank of Montreal Trust Company, Bank of Montreal, the Surety Bond
Provider and any successor thereof appointed pursuant thereto.
"COLLECTIONS" means, with respect to any Receivable, all funds which either
(a) are received by the Originator, the Seller or the Servicer or any Servicer
Person from or on behalf of the related Obligors (or from any drawing on any
letter of credit supporting payment of such Receivable) in payment of any
amounts owed (including, without limitation, purchase price, finance charges,
interest and all other charges) in respect of such Receivable, or applied to
such amounts owed by such Obligors (including, without limitation, insurance
payments that the Originator or the Servicer applies in the ordinary course of
its business to amounts owed in respect of such Receivable and net proceeds of
sale or other disposition of repossessed goods or other collateral or property
of the Obligor or any other party directly or indirectly liable for payment of
such Receivable and available to the applied thereon), or (b) are deemed to have
been received by Seller or any other Person as a Collection pursuant to Section
3.04 of the Receivables Purchase Agreement.
"COMMERCIAL PAPER NOTES" means short-term promissory notes issued or to be
issued by Purchaser to fund its investments in accounts receivable or other
financial assets.
"COMMITMENT" has the meaning set forth in Section 1.01 of the Receivables
Purchase Agreement.
"COMMITMENT FEES" means the "liquidity facility fee" and the "credit
enhancement fee," if any, referred to in the Fee Letter.
"COMMITMENT TERMINATION DATE" has the meaning set forth in Section 1.05 of
the Receivables Purchase Agreement.
"CONTRACT" means a contract between an Originator and any Person pursuant
to or under which such Person shall be obligated to make payments to such
Originator from time to time.
"COST OF FUNDS DISCOUNT" has the meaning set forth in Section 2.2(a) of the
Canadian Purchase and Sale Agreement.
"CREDIT AND COLLECTION POLICY" means those credit and collection policies
and practices relating to Contracts and Receivables of the Originator described
in Schedule 7.01(g) to the Receivables Purchase Agreement, as modified without
violating Section 7.03(c) of the Receivables Purchase Agreement.
DEFINITIONS 2
"DOLLARS" means dollars in lawful money of the United States of America.
"EARNED YIELD" has the meaning set forth in Section 2.04(b) of the
Receivables Purchase Agreement.
"EVENT OF BANKRUPTCY" shall be deemed to have occurred with respect to a
Person if either:
(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding up or
composition or readjustment of debts of such Person, the appointment of a
trustee, receiver, custodian, liquidator, assignee, sequestrator or the
like for such Person or all or substantially all of its assets, or any
similar action with respect to such Person under any law relating to
bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and such case or proceeding shall continue
undismissed, or unstayed and in effect, for a period of 60 consecutive
days; or an order for relief in respect of such Person shall be entered in
an involuntary case under the federal bankruptcy laws or other similar laws
now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other proceeding
under any applicable bankruptcy, insolvency, reorganization, debt
arrangement, dissolution or other similar law now or hereafter in effect,
or shall consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) for such Person or for any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall
fail to, or admit in writing its inability to, pay its debts generally as
they become due, or, if a corporation or similar entity, its board of
directors shall vote to implement any of the foregoing.
"FEE LETTER" means the letter agreement, dated as of May 19, 1997, with
respect to fees among Seller, Amphenol and the Agent, and any amendment or
supplement thereto.
"GAAP" means Canadian generally accepted accounting principles,
consistently applied.
"INDEMNIFIED PARTY" has the meaning set forth in Section 12.01(a) of the
Receivables Purchase Agreement.
"INITIAL CLOSING DATE," means the date on which the first purchases under
the Canadian Purchase and Sale Agreement shall occur.
"INSURANCE AGREEMENT" means and includes: (a) the Insurance and
Reimbursement Agreement, dated as of December 20, 1991, between Purchaser, the
Surety Bond Provider and the Agent and (b) any other agreement (other than the
Liquidity Agreement) hereafter entered into by Purchaser providing for the
issuance of one or more surety bonds or letters of credit supporting the payment
of Portfolio Receivables or Purchaser's payment obligations under its Commercial
Paper
DEFINITIONS 3
Notes, as the case may be, in each case as amended, supplemented or otherwise
modified from time to time.
"INVESTMENT" has the meaning set forth in Section 2.03 of the Receivables
Purchase Agreement.
"LIQUIDITY AGREEMENT" means and includes: (a) the Liquidity Agreement,
dated as of December 3, 1993 (and as amended by Amendment No. 1 to Liquidity
Agreement, dated as of May 19, 1997), among the Purchaser, as borrower, ▇▇▇▇▇▇▇
▇▇▇▇▇ Securities, Inc., as servicing agent for the Purchaser, Bank of Montreal,
as liquidity agent for the Banks, and the Banks (including Bank of Montreal),
and (b) any other agreement hereafter entered into by the Purchaser providing
for the making of loans or other extensions of credit to the Purchaser to
support all or part of the Purchaser's payment obligations under the Commercial
Paper Notes or to provide an alternate means of funding Investments in accounts
receivable or other financial assets, and under which the amount available from
such sale or such extension of credit is limited to an amount calculated by
reference to the value or eligible unpaid balance of such accounts receivable or
other financial assets or any portion thereof, in each case as amended,
supplemented or otherwise modified from time to time; PROVIDED, that, for
purposes of clarification, the Insurance Agreement is not a Liquidity Agreement.
"LOCK-BOX ACCOUNTS" means those certain bank accounts with the numbers, and
maintained at those certain locations, set forth on Section 6.01(n) of the
Receivables Purchase Agreement, each of which is owned by the Seller and pledged
on a first priority basis to the Purchaser pursuant to Section 13.01 of the
Receivables Purchase Agreement; and any bank account that is hereafter created
in accordance with, and to perform the function contemplated for "Lock-box
Accounts" in, the Receivables Purchase Agreement.
"LOCK-BOX AGREEMENT" means a letter agreement, in substantially the form of
Exhibit 5.01(h) to the Receivables Purchase Agreement, between the Seller and
any Lock-box Bank.
"LOCK-BOX BANK" means any of the banks holding one or more lock-box
accounts for receiving Collections of Portfolio Receivables.
"LOSS DISCOUNT" has the meaning set forth in Section 2.2(d) of the Canadian
Purchase and Sale Agreement.
"LOSS RATE" has the meaning set forth in Section 2.2(f) of the Canadian
Purchase and Sale Agreement.
"MATERIAL ADVERSE EFFECT" means, with respect to any event or circumstance,
a material adverse effect on:
(i) the ability of the Servicer, the Seller or the Originator to
perform its obligations under the Receivables Purchase Agreement or any
other Transaction Document or the performance of any such obligations,
DEFINITIONS 4
(ii) the validity or enforceability of, or collectibility of amounts
payable under, the Receivables Purchase Agreement or any other Transaction
Document,
(iii) the status, existence, perfection or priority of the Purchaser's
interest in the Receivables, including the Purchaser's unencumbered first
priority interest therein, or
(iv) the validity, enforceability or collectibility of the Receivables
or Contracts.
"MONTH-END BALANCE" has the meaning set forth in Section 2.2(g) of the
Canadian Purchase and Sale Agreement.
"MONTH END DATE" means the last day of each calendar month.
"OBLIGATIONS" means: (a) all obligations of the Seller, the Servicer (so
long as the Servicer is an Amphenol Person) and Amphenol to the Purchaser, the
Agent and their respective successors, permitted transferees and assigns arising
in connection with the Transaction Documents, and (b) all obligations of the
Seller, the Servicer (so long as the Servicer is an Amphenol Person) and
Amphenol to any Indemnified Party arising out of Section 12.01 of the
Receivables Purchase Agreement, in each case howsoever earned, arising or
evidenced, whether direct or indirect, absolute or contingent, now or hereafter
existing or due or to become due.
"OBLIGOR" means a Person obligated to make payments with respect to a
Receivable.
"ORIGINATOR ASSIGNMENT CERTIFICATE" means each assignment, in substantially
the form of Exhibit B to the Canadian Purchase and Sale Agreement, evidencing
Seller's ownership of the Receivables generated by the Originator, as the same
may be amended, supplemented, amended and restated or otherwise modified from
time to time in accordance with the Canadian Purchase and Sale Agreement.
"ORIGINATOR" means Amphenol Canada Corp., an Ontario corporation, together
with its successors as permitted under the Canadian Purchase and Sale Agreement.
"PARTICIPATION" has the meaning set forth in Section 2.01(a)(i) of the
Receivables Purchase Agreement.
"PAYMENT DATE" means: (a) the Initial Closing Date and (b) the fifteenth
day of each calendar month following thereafter or, if such day is not a
Business Day, the next Business Day.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, government or any agency or political subdivision thereof or any other
entity.
"PORTFOLIO" means at any time all then outstanding Receivables.
DEFINITIONS 5
"PORTFOLIO RECEIVABLE" means a Receivable in the Portfolio.
"PROGRAM FEE" means the "program fee" referred to in the Fee Letter.
"PURCHASE" has the meaning set forth in Section 1.01(a) of the Receivables
Purchase Agreement; IT BEING UNDERSTOOD, that a Reinvestment is not a
"Purchase".
"PURCHASE AND SALE INDEMNIFIED AMOUNTS" has the meaning set forth in
Section 10.1 of the Canadian Purchase and Sale Agreement.
"PURCHASE AND SALE INDEMNIFIED PARTY" has the meaning set forth in Section
10.1 of the Canadian Purchase and Sale Agreement.
"PURCHASE AND SALE TERMINATION DATE" has the meaning set forth in Section
1.5 of the Canadian Purchase and Sale Agreement.
"PURCHASE AND SALE TERMINATION EVENT" has the meaning set forth in Section
9.1 of the Canadian Purchase and Sale Agreement.
"PURCHASE FACILITY" has the meaning set forth in Section 1.1 of the
Canadian Purchase and Sale Agreement.
"PURCHASE PRICE" has the meaning set forth in Section 2.1 of the Canadian
Purchase and Sale Agreement.
"PURCHASE REPORT" has the meaning set forth in Section 2.1 of the Canadian
Purchase and Sale Agreement.
"PURCHASER" has the meaning set forth in the preamble of the Receivables
Purchase Agreement.
"RECEIVABLE" means any right to payment from an Obligor (other than an
Amphenol Person) whether constituting an account, chattel paper, instrument or
general intangible, arising from the sale by the Originator of its goods and
services, and includes the right to payment of any interest or finance charges
and other obligations of such Obligor with respect thereto.
"RECEIVABLES PURCHASE AGREEMENT"means the Amended and Restated Receivables
Purchase Agreement, dated as of May 19, 1997, among Amphenol Funding Corp.,
Amphenol Corporation, Pooled Accounts Receivable Capital Corporation and ▇▇▇▇▇▇▇
▇▇▇▇▇ Securities, Inc., as Agent, as amended by the First Amendment to Amended
and Restated Receivables Purchase Agreement, dated as of September 26, 1997, as
the same may be further amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with the terms thereof.
DEFINITIONS 6
"REINVESTMENT" has the meaning set forth in Section 1.01(b) of the
Receivables Purchase Agreement.
"RELATED SECURITY" means, with respect to any Receivable: (a) all of the
Originator's interest in inventory and other goods (to the extent such inventory
and other goods constitute merchandise), if any, relating to the sale that gave
rise to such Receivable; (b) all other security interests or liens and property
subject thereto (including any rights arising out of any financing statements
related thereto) from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable or
otherwise; and (c) all guarantees, letters of credit and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of such Receivable whether pursuant to the Contract related to such
Receivable or otherwise.
"SELLER" has the meaning set forth in the preamble of the Receivables
Purchase Agreement.
"SERVICER" has the meaning set forth in Section 8.01(a) of the Receivables
Purchase Agreement.
"SERVICER PERSON" means the Originator, as agent of Amphenol (as Servicer)
for the purpose of servicing, administering and collecting the portion of the
Receivables sold by the Originator to Seller, as set forth in the Receivables
Purchase Agreement and the Servicer Person Letter Agreement.
"SERVICER PERSON LETTER AGREEMENT" has the meaning set forth in Section
8.01(c) of the Receivables Purchase Agreement.
"SETTLEMENT DATE" means the last day of each Settlement Period.
"SETTLEMENT PERIOD" for any Participation means each period commencing on
the first day of each Yield Period for such Participation and ending on the last
day of such Yield Period, and, on and after the Commitment Termination Date,
such period (including, without limitation, a daily period) as shall be selected
from time to time by the Agent or, in absence of any such selection, each period
of thirty days from the last day of the immediately preceding Settlement Period;
PROVIDED, HOWEVER, that with respect to any Yield Period of one day as described
in CLAUSE (II) of the proviso clause of the definition of "Yield Period," the
related Settlement Period shall be the first day following such Yield Period.
"SPREAD DISCOUNT" has the meaning set forth in Section 2.2(c) of the
Canadian Purchase and Sale Agreement.
"SUBSIDIARY" means, with respect to any Person, any corporation of which
more than 50% of the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned: (a) by such Person,
(b) by such Person and
DEFINITIONS 7
one or more other Subsidiaries of such Person or (c) by one or more other
Subsidiaries of such Person.
"SURETY BOND" means a surety bond issued or to be issued by the Surety Bond
Provider to the Collateral Trustee supporting the payment of Portfolio
Receivables.
"SURETY BOND PROVIDER" means Capital Market Assurance Corporation, as
issuer of the Surety Bond.
"TERMINATION EVENT" has the meaning set forth in Section 9.01 of the
Receivables Purchase Agreement.
"TRANSACTION DOCUMENTS" means the Receivables Purchase Agreement, the Fee
Letter, the Servicer Person Letter Agreement, the Certificate, each Originator
Assignment Certificate, the Canadian Purchase and Sale Agreement, the U.S.
Purchase and Sale Agreement, the Lock-box Agreements and all other instruments,
certificates, agreements, reports or documents delivered under or in connection
with the Receivables Purchase Agreement, the Canadian Purchase and Sale
Agreement or the U.S. Purchase and Sale Agreement (except the Liquidity
Agreement), as any of the foregoing may be amended, supplemented, amended and
restated or otherwise modified from time to time in accordance therewith.
"UCC" means, in respect of each state in the United States of America, the
Uniform Commercial Code as from time to time in effect in such state, and, in
respect of each province or territory of Canada, any applicable law of Canada or
such province or territory relating to the registration, recording or perfection
of security interests or the assignment of debts as from time to time in effect
in such province or territory; PROVIDED, that if any terms that are used herein
and are expressed to be as defined in the UCC and a particular jurisdiction's
UCC does not define such term, then such term shall have the meaning assigned to
it in the Personal Property Security Act (Ontario) from time to time in effect.
"UNMATURED PURCHASE AND SALE TERMINATION EVENT" means any event which, with
the giving of notice or lapse of time, or both, would become a Purchase and Sale
Termination Event.
"UNPAID BALANCE" means (i) with respect to any Receivable at any time the
unpaid principal amount thereof and (ii) with respect to the Portfolio at any
time the aggregate unpaid principal amount of all Receivables.
"U.S. PURCHASE AND SALE AGREEMENT" means that certain Amended and Restated
Purchase and Sale Agreement, dated as of May 19, 1997, among the Seller, the
Originators named therein and the Servicer, as the same may be amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with the terms thereof and with the Receivables Purchase Agreement.
DEFINITIONS 8
"YIELD PERIOD" has the meaning set forth in Appendix A to the U.S. Purchase
and Sale Agreement.
SECTION 1.2 OTHER TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP.
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."
SECTION 1.4 OTHER DEFINITIONAL PROVISIONS (a) Each term defined in the
singular form in SECTION 1.1 shall mean the plural thereof when the plural form
of such term is used herein or in any Transaction Document or other document
delivered pursuant thereto, and each term defined in the plural form in SECTION
1.1 shall mean the singular thereof when the singular form of such term is used
herein or therein.
(b) The words "hereof," "herein," "hereunder" and similar terms when used
in this Appendix A or in any Transaction Document shall refer thereto as a whole
and not to any particular provision thereof, and article, section, subsection,
schedule and exhibit references in any Transaction Document are references to
articles, sections, subsections, schedules and exhibits to such Transaction
Document unless otherwise specified.
DEFINITIONS 9
EXHIBIT A
TO CANADIAN PURCHASE AND SALE AGREEMENT
FORM OF PURCHASE REPORT
-----------------
PURCHASE REPORT AS OF:
----------------- ----------------
ORIGINATOR: AMPHENOL CANADA CORP.
AGGREGATE UNPAID BALANCE:
------------------------
PURCHASE DISCOUNT -------------------------
a. LOSS DISCOUNT -------------------------
b. COST OF FUNDS DISCOUNT -------------------------
c. SPREAD DISCOUNT -------------------------
PURCHASE PRICE (AUB-PD) $0.0
CANADIAN PURCHASE AND SALE AGREEMENT A - 1
EXHIBIT B
TO CANADIAN PURCHASE AND SALE AGREEMENT
FORM OF ORIGINATOR ASSIGNMENT CERTIFICATE
-----------------------------------------
Reference is made to the Canadian Purchase and Sale Agreement, dated as of
September 26, 1997 (as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time, the "CANADIAN PURCHASE AND
SALE AGREEMENT"), among the undersigned, Amphenol Funding Corp. ("AFC"), and
Amphenol Corporation, individually and as the initial Servicer. Unless otherwise
defined herein, capitalized terms used herein have the meanings provided in
Appendix A to the Canadian Purchase and Sale Agreement.
The undersigned hereby sells, assigns and transfers unto AFC and its
successors and assigns all right, title and interest of the undersigned in and
to:
(a) each Receivable of the undersigned that existed and was owing to
the undersigned as at the closing of the undersigned's business on
_________, ____,
(b) each Receivable created by the undersigned from and including the
closing of the undersigned's business on _________, ____ to and including
the Purchase and Sale Termination Date,
(c) all rights to, but not the obligations under, all Related
Security,
(d) all monies due or to become due with respect to the Receivables
described in CLAUSES (A) and (B),
(e) all proceeds of Receivables described in CLAUSES (A) and (B) (as
defined in the applicable UCC) that are or were received by the undersigned
on or after the closing of the undersigned's business on _________, ____
including (without limitation) all funds that either are received by the
undersigned, AFC or the Servicer from or on behalf of the Obligors in
payment of any amounts owed (including, without limitation, invoice price,
finance charges and all other charges) in respect of Receivables, or are
applied to such amounts owed by the Obligors (including, without
limitation, insurance payments that the undersigned or the Servicer applies
in the ordinary course of its business to amounts owed in respect of any
Receivable and net proceeds of sale or other disposition of repossessed
goods or other collateral or property of the Obligors or any other parties
directly or indirectly liable for payment of such Receivables), and
(f) all books and records related to any of the foregoing.
CANADIAN PURCHASE AND SALE AGREEMENT B - 1
Notwithstanding anything else herein to the contrary, there is hereby excluded
from such sale any rights to recover, or any amounts payable by any Obligor with
respect to, interest, finance charges or any similar charges on any Receivable
the Obligor of which is not a resident of the United States.
This Originator Assignment Certificate is made without recourse but on the
terms and subject to the conditions set forth in the Transaction Documents to
which the undersigned is a party. The undersigned acknowledges and agrees that
AFC and its successors and assigns are accepting this Originator Assignment
Certificate in reliance on the representations, warranties and covenants of the
undersigned contained in the Transaction Documents to which the undersigned is a
party.
THIS ORIGINATOR ASSIGNMENT CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE CANADIAN PURCHASE AND SALE AGREEMENT AND THE LAWS OF THE
PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN.
The undersigned hereby certifies that, in respect of the Receivables
described in CLAUSE (A) above, each of the conditions set forth in Section 5.1
of the Canadian Purchase and Sale Agreement are satisfied as of the date hereof.
IN WITNESS WHEREOF, the undersigned has caused this Originator Assignment
Certificate to be duly executed and delivered by its duly authorized officer as
of this ____ day of _________, ____.
AMPHENOL CANADA CORP.
By:______________________________
Name:__________________________
Title:_________________________
CANADIAN PURCHASE AND SALE AGREEMENT B - 2
EXHIBIT C
TO CANADIAN PURCHASE AND SALE AGREEMENT
PROCEEDINGS
-----------
NONE
CANADIAN PURCHASE AND SALE AGREEMENT C - 1
EXHIBIT D
TO CANADIAN PURCHASE AND SALE AGREEMENT
OFFICE LOCATIONS
----------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
CANADIAN PURCHASE AND SALE AGREEMENT D - 1
EXHIBIT E
TO CANADIAN PURCHASE AND SALE AGREEMENT
TRADE NAMES AND CORPORATE REORGANIZATIONS
-----------------------------------------
LEGAL ENTITY TRADE NAMES
------------ -----------
AMPHENOL CANADA CORP. Amphenol Canada Corp.
CANADIAN PURCHASE AND SALE AGREEMENT E - 1