Exhibit 10.34
Execution Copy
dated as of November 27, 2007
Among
HBI RECEIVABLES LLC, as Seller,
THE COMMITTED PURCHASERS PARTY HERETO FROM TIME TO TIME,
THE CONDUIT PURCHASER PURCHASERS PARTY HERETO FROM TIME TO
TIME,
THE MANAGING AGENTS PARTY HERETO FROM TIME TO TIME,
and
JPMORGAN CHASE BANK, N.A.
as Agent
X.X. XXXXXX SECURITIES INC.
as Sole Lead Arranger
* PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page |
|
|
|
|
|
|
|
|
|
ARTICLE I |
|
PURCHASE ARRANGEMENTS |
|
|
1 |
|
|
|
Section 1.1
|
|
Purchase Facility
|
|
|
1 |
|
|
|
Section 1.2
|
|
Increases
|
|
|
2 |
|
|
|
Section 1.3
|
|
Decreases
|
|
|
3 |
|
|
|
Section 1.4
|
|
Payment Requirements
|
|
|
3 |
|
|
|
|
|
|
|
|
|
|
ARTICLE II |
|
PAYMENTS AND COLLECTIONS |
|
|
3 |
|
|
|
Section 2.1
|
|
Payments
|
|
|
3 |
|
|
|
Section 2.2
|
|
Collections Prior to Amortization
|
|
|
4 |
|
|
|
Section 2.3
|
|
Collections Following Amortization
|
|
|
4 |
|
|
|
Section 2.4
|
|
Application of Collections
|
|
|
4 |
|
|
|
Section 2.5
|
|
Payment Rescission
|
|
|
5 |
|
|
|
Section 2.6
|
|
Maximum Purchaser Interests
|
|
|
5 |
|
|
|
|
|
|
|
|
|
|
ARTICLE III |
|
CONDUIT PURCHASER FUNDING |
|
|
5 |
|
|
|
Section 3.1
|
|
Yield
|
|
|
6 |
|
|
|
Section 3.2
|
|
Yield Payments
|
|
|
6 |
|
|
|
Section 3.3
|
|
Calculation of Yield
|
|
|
6 |
|
|
|
|
|
|
|
|
|
|
ARTICLE IV |
|
COMMITTED PURCHASER FUNDING |
|
|
6 |
|
|
|
Section 4.1
|
|
Committed Purchaser Funding
|
|
|
6 |
|
|
|
Section 4.2
|
|
Yield Payments
|
|
|
6 |
|
|
|
Section 4.3
|
|
Selection and Continuation of Tranche Periods
|
|
|
6 |
|
|
|
Section 4.4
|
|
Committed Purchaser Discount Rates
|
|
|
7 |
|
|
|
Section 4.5
|
|
Suspension of the LIBO Rate
|
|
|
7 |
|
|
|
|
|
|
|
|
|
|
ARTICLE V |
|
REPRESENTATIONS AND WARRANTIES |
|
|
8 |
|
|
|
Section 5.1
|
|
Representations and Warranties of The Seller Parties
|
|
|
8 |
|
|
|
Section 5.2
|
|
Committed Purchaser Representations and Warranties
|
|
|
12 |
|
|
|
Section 5.3
|
|
Representations and Warranties Regarding Conduit Purchasers
|
|
|
13 |
|
|
|
|
|
|
|
|
|
|
ARTICLE VI |
|
CONDITIONS OF PURCHASES |
|
|
14 |
|
|
|
Section 6.1
|
|
Conditions Precedent to Initial Incremental Purchase
|
|
|
14 |
|
|
|
Section 6.2
|
|
Conditions Precedent to All Purchases and Reinvestments
|
|
|
14 |
|
|
|
|
|
|
|
|
|
|
ARTICLE VII |
|
COVENANTS |
|
|
15 |
|
|
|
Section 7.1
|
|
Affirmative Covenants of The Seller Parties
|
|
|
15 |
|
|
|
Section 7.2
|
|
Negative Covenants of The Seller Parties
|
|
|
23 |
|
|
|
|
|
|
|
|
|
|
ARTICLE VIII |
|
ADMINISTRATION AND COLLECTION |
|
|
24 |
|
|
|
Section 8.1
|
|
Designation of Servicer
|
|
|
24 |
|
|
|
Section 8.2
|
|
Duties of Servicer
|
|
|
25 |
|
|
|
Section 8.3
|
|
Collection Notices
|
|
|
26 |
|
|
|
Section 8.4
|
|
Responsibilities of Seller and Servicer
|
|
|
26 |
|
|
|
Section 8.5
|
|
Reports
|
|
|
27 |
|
|
|
Section 8.6
|
|
Servicing Fees
|
|
|
27 |
|
|
|
Section 8.7
|
|
Servicer Default
|
|
|
27 |
|
i
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page |
|
|
|
|
|
|
|
|
|
ARTICLE IX |
|
AMORTIZATION EVENTS |
|
|
27 |
|
|
|
Section 9.1
|
|
Amortization Events
|
|
|
27 |
|
|
|
Section 9.2
|
|
Remedies
|
|
|
31 |
|
|
|
|
|
|
|
|
|
|
ARTICLE X |
|
INDEMNIFICATION |
|
|
31 |
|
|
|
Section 10.1
|
|
Indemnities by Seller
|
|
|
31 |
|
|
|
Section 10.2
|
|
Indemnities by Servicer
|
|
|
34 |
|
|
|
Section 10.3
|
|
Increased Cost and Reduced Return
|
|
|
35 |
|
|
|
Section 10.4
|
|
Other Costs and Expenses
|
|
|
36 |
|
|
|
|
|
|
|
|
|
|
ARTICLE XI |
|
THE AGENT |
|
|
36 |
|
|
|
Section 11.1
|
|
Authorization and Action
|
|
|
36 |
|
|
|
Section 11.2
|
|
Delegation of Duties
|
|
|
37 |
|
|
|
Section 11.3
|
|
Exculpatory Provisions
|
|
|
37 |
|
|
|
Section 11.4
|
|
Reliance by Agent
|
|
|
38 |
|
|
|
Section 11.5
|
|
Non Reliance on Agents and Other Purchasers
|
|
|
38 |
|
|
|
Section 11.6
|
|
Reimbursement and Indemnification
|
|
|
39 |
|
|
|
Section 11.7
|
|
Agents in their Individual Capacity
|
|
|
39 |
|
|
|
Section 11.8
|
|
Successor Agent
|
|
|
39 |
|
|
|
|
|
|
|
|
|
|
ARTICLE XII |
|
ASSIGNMENTS; PARTICIPATIONS |
|
|
40 |
|
|
|
Section 12.1
|
|
Assignments
|
|
|
40 |
|
|
|
Section 12.2
|
|
Participations
|
|
|
41 |
|
|
|
|
|
|
|
|
|
|
ARTICLE XIII |
|
MISCELLANEOUS |
|
|
41 |
|
|
|
Section 13.1
|
|
Waivers and Amendments
|
|
|
41 |
|
|
|
Section 13.2
|
|
Notices
|
|
|
42 |
|
|
|
Section 13.3
|
|
Ratable Payments
|
|
|
43 |
|
|
|
Section 13.4
|
|
Protection of Ownership Interests of the Purchasers
|
|
|
43 |
|
|
|
Section 13.5
|
|
Confidentiality
|
|
|
44 |
|
|
|
Section 13.6
|
|
Bankruptcy Petition
|
|
|
45 |
|
|
|
Section 13.7
|
|
Limited Recourse
|
|
|
45 |
|
|
|
Section 13.8
|
|
Limitation of Liability
|
|
|
46 |
|
|
|
Section 13.9
|
|
CHOICE OF LAW
|
|
|
47 |
|
|
|
Section 13.10
|
|
CONSENT TO JURISDICTION
|
|
|
47 |
|
|
|
Section 13.11
|
|
WAIVER OF JURY TRIAL
|
|
|
47 |
|
|
|
Section 13.12
|
|
Integration; Binding Effect; Survival of Terms
|
|
|
47 |
|
|
|
Section 13.13
|
|
Counterparts; Severability; Section References
|
|
|
48 |
|
|
|
Section 13.14
|
|
Agent Roles
|
|
|
48 |
|
|
|
Section 13.15
|
|
Characterization
|
|
|
49 |
|
|
|
Section 13.16
|
|
USA PATRIOT Act
|
|
|
50 |
|
|
|
Exhibits and Schedules |
|
iii
|
ii
Exhibits and Schedules
|
|
|
Exhibit I
|
|
Definitions |
Exhibit II
|
|
Form of Purchase Notice |
Exhibit III
|
|
Places of Business of the Seller Parties; Locations of
Records; Federal Employer Identification Number(s) |
Exhibit IV
|
|
Form of Reduction Notice |
Exhibit V
|
|
Form of Compliance Certificate |
Exhibit VI
|
|
Form of Collection Account Agreement |
Exhibit VII
|
|
Form of Assignment Agreement |
Exhibit VIII
|
|
Credit and Collection Policy |
Exhibit IX
|
|
Form of Contract(s) |
Exhibit X
|
|
Form of Weekly Report |
Exhibit XI
|
|
Form of Settlement Report |
Exhibit XII
|
|
Financial Covenant Definitions |
Exhibit XIII
|
|
Form of Daily Report |
|
|
|
Schedule A
|
|
Commitments |
Schedule B
|
|
Closing Documents |
Schedule C
|
|
Special Concentration Limits |
Schedule D
|
|
Calendar Months |
iii
This
Receivables Purchase Agreement dated as of November 27, 2007 (this “
Agreement”)
is among HBI Receivables LLC, a Delaware limited liability company (“
Seller”),
Hanesbrands
Inc., a Maryland corporation (“
HBI”), as initial Servicer (the Servicer together with
Seller, the “
Seller Parties” and each a “
Seller Party”), the entities listed on
Schedule A to this Agreement as Committed Purchasers (together with their respective
successors and assigns hereunder, the “
Committed Purchasers”), the entities listed on
Schedule A to this Agreement as Conduit Purchasers (together with their respective
successors and assigns hereunder, the “
Conduit Purchasers”), the entities listed on
Schedule A to this Agreement as Managing Agents (together with their respective successors
and assigns hereunder, the “
Managing Agents”), and JPMorgan Chase Bank, N.A.,
(“
JPMorgan”), as agent for the Purchasers hereunder or any successor agent hereunder
(together with its successors and assigns hereunder, the “
Agent”). Unless defined
elsewhere herein, capitalized terms used in this Agreement shall have the meanings assigned to such
terms in
Exhibit I.
Seller desires to transfer and assign Purchaser Interests to the Purchasers from time to time.
The Conduit Purchasers may, in their absolute and sole discretion, purchase Purchaser
Interests from Seller from time to time.
In the event that a Conduit Purchaser declines to make any purchase, the Committed Purchasers
in its Purchase Group shall, at the request of Seller, purchase Purchaser Interests from time to
time.
JPMorgan Chase Bank, N.A. has been requested and is willing to act as Agent on behalf of the
Purchasers in accordance with the terms hereof.
ARTICLE I
PURCHASE ARRANGEMENTS
Section 1.1 Purchase Facility.
(a) Upon the terms and subject to the conditions hereof, Seller may, at its option, sell and
assign Purchaser Interests to the Agent for the benefit of the Purchasers during the period from
the date hereof to but not including the Facility Termination Date; provided that the aggregate
Capital outstanding at any time hereunder shall not exceed (i) in respect of all Purchasers, an
amount equal to the Purchase Limit at such time and (ii) in respect of any Purchase Group, the
applicable Group Purchase Limit at such time. In accordance with the terms and conditions set
forth herein, each Conduit Purchaser may, at its option, instruct its Managing Agent to cause the
Agent to purchase on its behalf, or if any Conduit Purchaser shall decline to purchase, its
Managing Agent shall
Page 1
cause the Agent to purchase, on behalf of the Committed Purchasers in its
Purchase Group, the applicable Purchase Group Share of such Purchaser Interests.
(b) Seller may, upon at least 10 Business Days’ notice to each Managing Agent and the Agent,
terminate in whole or reduce in part, the unused portion of the Purchase Limit. Upon any reduction
in the Purchase Limit, the Group Purchase Limits shall be permanently reduced by a corresponding
amount (ratably among the Purchase Groups in accordance with the Purchase Group Shares) and the
Commitments of each Committed Purchaser in each Purchase Group shall be ratably reduced in
accordance with their respective Pro Rata Share. Each partial reduction of the Purchase Limit
shall be in an amount equal to $1,000,000 or an integral multiple thereof.
(c) On the date of each Incremental Purchase made under Section 1.2 and on the date of
each Reinvestment made under Section 2.2, Seller hereby sells and assigns to the Agent
(for the benefit of the Purchasers ratably among the Purchase Groups, in accordance with each
Purchase Group Share), and the Agent hereby purchases, for the benefit of such Purchasers, a
Purchaser Interest in the Receivables, Related Security and Collections then existing and
thereafter arising or existing, subject only to the payment by such Purchasers of the applicable
Purchase Price therefor in accordance with the terms of this Agreement.
Section 1.2 Increases.
Seller shall provide the Agent and each Managing Agent with at least two (2) Business Days’
prior notice in a form set forth as Exhibit II hereto of each Incremental Purchase (a “Purchase
Notice”). Each Purchase Notice shall be subject to Section 6.2 hereof and, except as
set forth below, shall be irrevocable and shall specify the requested Purchase Price (which shall
not be less than $1,000,000) and date of purchase and, in the case of an Incremental Purchase to be
funded by the Committed Purchasers, the requested Discount Rate and Tranche Period. Following
receipt of a Purchase Notice, each Managing Agent will determine whether the Conduit Purchasers in
its Purchase Group agree to make the purchase of the applicable Purchase Group Share of such
Incremental Purchase. In the event that a Purchase Group has more than one Conduit Purchaser, the
related Managing Agent shall allocate the Incremental Purchases among such Conduit Purchasers in
its sole discretion. If the Conduit Purchasers in any Purchase Group decline to make a proposed
purchase, the Managing Agent for the related Purchase Group shall notify Seller and Seller may
cancel the Purchase Notice. In the absence of such a cancellation, the applicable Purchase Group
Share of the requested Incremental Purchase will be made by the Committed Purchasers in such
Purchase Group ratably based on their Pro Rata Shares. The Committed Purchasers in a Purchase
Group will not fund any portion of an Incremental Purchase unless the Conduit Purchasers in its
Purchase Group have declined to fund such portion. On the date of each Incremental Purchase, upon
satisfaction of the applicable conditions precedent set forth in Article VI, the applicable
Purchasers in each Purchase Group shall initiate a wire transfer of immediately available funds to
the account specified by Seller, no later than 12:00 noon (Chicago time), an amount equal to the
applicable Purchase Group Share of the applicable Purchase Price for such Incremental Purchase.
There may not be more than ten (10) Incremental Purchases during any calendar month.
Page 2
Section 1.3 Decreases. Seller shall provide the Agent and each Managing Agent with
prior written notice in a form set forth as Exhibit IV hereto in conformity with the
Required Notice Period (a “Reduction Notice”) of any proposed reduction of Aggregate
Capital from Collections. Such Reduction Notice shall designate (i) the date (the “Proposed
Reduction Date”) upon which any such reduction of Aggregate Capital shall occur (which date shall give effect to the applicable Required Notice Period),
and (ii) the amount of Aggregate Capital to be reduced (the “Aggregate Reduction”) which
shall be distributed ratably to each Purchase Group based on the Purchase Group Share of the
Aggregate Capital of each Purchase Group and which shall be applied by each Managing Agent ratably
to the Purchaser Interests of the Purchasers in such Managing Agent’s Purchase Group ratably in
accordance with the amount of Capital (if any) owing to such Purchasers. Only one (1) Reduction
Notice shall be outstanding at any time.
Section 1.4 Payment Requirements. All amounts to be paid or deposited by any Seller
Party pursuant to any provision of this Agreement shall be paid or deposited in accordance with the
terms hereof no later than 11:00 a.m. (Chicago time) on the day when due in immediately available
funds, and if not received before 11:00 a.m. (Chicago time) shall be deemed to be received on the
next succeeding Business Day. If such amounts are payable to a Purchaser they shall be paid to the
applicable Managing Agent, for the account of such Purchaser, at the account specified by such
Managing Agent. All computations of Yield, per annum fees hereunder and per annum fees under the
Fee Letter shall be made on the basis of a year of 360 days for the actual number of days elapsed.
If any amount hereunder shall be payable on a day which is not a Business Day, such amount shall be
payable on the next succeeding Business Day.
Section 2.1
Payments. Notwithstanding any limitation on recourse contained in this
Agreement, Seller shall immediately pay when due to the Agent or each Managing Agent, as
applicable, for the account of the relevant Purchasers, Funding Sources or Indemnified Parties on a
full recourse basis, as applicable, (i) such fees as set forth in the Fee Letter, (ii) all amounts
payable as Yield, (iii) all amounts payable as Deemed Collections (which shall be immediately due
and payable by Seller and applied to reduce outstanding Aggregate Capital hereunder in accordance
with
Sections 2.2 and
2.3), (iv) all amounts required pursuant to
Section
2.6, (v) all amounts payable pursuant to
Article X, if any, (vi) all Servicer costs and
expenses, including the Servicing Fee, in connection with servicing, administering and collecting
the Receivables and (vii) all Broken Funding Costs (collectively, the “
Obligations”). If
any Person fails to pay any of the Obligations when due, such Person agrees to pay, on demand,
interest thereon accruing at the Default Rate until paid in full. Notwithstanding the foregoing,
no provision of this Agreement or the Fee Letter shall require the payment or permit the collection
of any amounts hereunder in excess of the maximum permitted by applicable law. If at any xxxx
Xxxxxx receives any Collections or is deemed to receive any Collections, Seller shall immediately
pay such Collections or Deemed Collections to the Servicer for application in accordance with the
terms and conditions hereof and, at all times prior to such payment, such Collections or Deemed
Collections shall be held in trust by Seller for the exclusive benefit of the Purchasers and the
Agent.
Page 3
Section 2.2
Collections Prior to Amortization. (a) Prior to the Amortization Date,
any Collections and/or Deemed Collections received by the Servicer shall be set aside and held in
trust by the Servicer for the payment of any accrued and unpaid Aggregate Unpaids, any Aggregate
Reductions or for a Reinvestment as provided in this
Section 2.2. If at any time any
Collections and/or Deemed Collections are received by the Servicer prior to the Amortization Date
and such Collections and/or Deemed Collections are not so set aside or held in trust for the
payment of Aggregate Unpaids or Aggregate Reductions, Seller hereby requests and the Purchasers hereby agree to make, simultaneously
with such receipt, but subject to the conditions precedent set forth herein, a reinvestment (each a
“
Reinvestment”) with that portion of the balance of each and every Collection and Deemed
Collection received by the Servicer that is part of any Purchaser Interest, such that after giving
effect to such Reinvestment, the amount of Capital of such Purchaser Interest immediately after
such receipt and corresponding Reinvestment shall be equal to the amount of Capital immediately
prior to such receipt.
Section 2.3
Collections Following Amortization. On the Amortization Date and on each
day thereafter, the Servicer shall set aside and hold in trust, for the holder of each Purchaser
Interest, all Collections received on such day and an additional amount for the payment of any
accrued and unpaid Obligations owed by Seller and not previously paid by Seller in accordance with
Section 2.1.
Section 2.4
Application of Collections. (i) Prior to the Amortization Date, on each
Settlement Date, and (ii) on and after the Amortization Date, on each Settlement Date and on such
additional dates as the Agent may request (which may be each Business Day), the Servicer shall
distribute the funds set aside or held in trust pursuant to
Section 2.2 or
2.3 (as
applicable), in the following priority:
(i) first, to the payment of the Servicer’s reasonable out-of-pocket costs and
expenses in connection with servicing, administering and collecting the Receivables,
including the Servicing Fee, if Originator or one of its Affiliates is not then acting as
the Servicer,
(ii) second, to the Agent, to be distributed to each Managing Agent, for the
benefit of the Purchasers in its Purchase Group all accrued and unpaid fees under the Fee
Letter and all Yield, ratably in accordance with such amounts owed to such parties;
(iii) third, (to the extent applicable) to the Agent, to be distributed to
each Managing Agent, for the benefit of the Purchasers in its Purchase Group to be applied
to the reduction of the Aggregate Capital, ratably in accordance with each Purchase Group
Share,
(iv) fourth, to the reimbursement of the Agent’s and the Managing Agents’
costs of collection and enforcement of the Facility documents ratably in accordance with
the costs owed to such parties,
(v) fifth, for the ratable payment of all other unpaid Obligations, provided
that to the extent such Obligations relate to the payment of Servicer costs and
Page 4
expenses, including the Servicing Fee, when Originator or one of its Affiliates is acting as the
Servicer, such costs and expenses will not be paid until after the payment in full of all
other Obligations, and
(vi) sixth, after the Aggregate Unpaids have been indefeasibly reduced to
zero, to Seller.
Collections applied to the payment of Aggregate Unpaids shall be distributed in accordance
with the aforementioned provisions, and, giving effect to each of the priorities set forth in this
Section 2.4 above, shall be shared ratably (within each priority) among the parties described in such priority of application in accordance with the amount of
such Aggregate Unpaids owing to each of them in respect of each such priority unless otherwise
specified. Each Managing Agent shall distribute the amounts received pursuant to clauses
(iii) and (iv) above to the Purchasers in its Purchase Group ratably according to the
applicable amounts owed to such Purchasers. On and after the Amortization Date, in the event that
applications of Collections are made on a date other than a Settlement Date, if any Managing Agent
so directs the Agent, the Agent shall set aside from Collections for distribution to such Managing
Agent on the next Settlement Date, the accrued and unpaid fees under the Fee Letter and accrued and
unpaid Yield which are (or will be) due and payable to the Managing Agents and Purchasers in the
related Purchase Group on the next Settlement Date.
Section 2.5
Payment Rescission. No payment of any of the Aggregate Unpaids shall be
considered paid or applied hereunder to the extent that, at any time, all or any portion of such
payment or application is rescinded by application of law or judicial authority, or must otherwise
be returned or refunded for any reason to the extent such payment is returned or refunded by any of
the Agent, any Managing Agent, any Purchaser or any Indemnified Party. Seller shall remain
obligated for the amount of any payment or application so rescinded, returned or refunded, and
shall promptly pay to the Agent (for the ratable application to the Person or Persons who suffered
such rescission, return or refund) the full amount thereof, plus interest thereon at the Default
Rate from the date of any such rescission, return or refunding.
Section 2.6
Maximum Purchaser Interests. Prior to the Amortization Date, the Seller
shall ensure that the aggregate Purchaser Interests of the Purchasers shall at no time exceed in
the aggregate 100%. If prior to the Amortization Date, the aggregate of the Purchaser Interests of
the Purchasers exceeds 100%, Seller shall pay within one (1) Business Day an amount to the Managing
Agents which shall be allocated to each Managing Agent based on each Purchase Group Share to be
applied to reduce the Aggregate Capital (as allocated by each Managing Agent to each of the
Purchasers in its related Purchaser Group ratably based upon each such Purchaser’s Capital) such
that after giving effect to such payment (and the application thereof to reduce the Aggregate
Capital) the aggregate of the Purchaser Interests equals or is less than 100%.
ARTICLE III
CONDUIT PURCHASER FUNDING
Page 5
Section 3.1 Yield. The Capital associated with each Purchaser Interest funded by a
Conduit Purchaser shall accrue Yield at the CP Rate applicable to such Conduit Purchaser for each
day that any Capital in respect of such Purchaser Interest is outstanding ; provided, that the
Capital associated with any Purchaser Interest, portion thereof or undivided interest therein which
is being funded by the Committed Purchasers in such Conduit Purchaser’s Purchase Group pursuant to
a Liquidity Agreement shall accrue Yield pursuant to Article IV.
Section 3.2 Yield Payments. On each Settlement Date Seller shall pay to each Managing
Agent for the benefit of each Conduit Purchaser in its Purchase Group an aggregate amount equal to
all accrued and unpaid Yield in respect of the Capital associated with all Purchaser Interests of
each Conduit Purchaser for the immediately preceding Accrual Period in accordance with Article
II.
Section 3.3 Calculation of Yield. On or before the second Business Day immediately
preceding each Settlement Date, each Managing Agent shall calculate the aggregate amount of Yield
due and payable to each Conduit Purchaser in its Purchase Group for the immediately preceding
Accrual Period and shall notify Seller of such aggregate amount.
Section 4.1
Committed Purchaser Funding. The Capital associated with each Purchaser
Interest funded by the Committed Purchasers shall accrue Yield for each day during its Tranche
Period at either the LIBO Rate or the Prime Rate in accordance with the terms and conditions
hereof. If any Committed Purchaser acquires by assignment from the Conduit Purchaser in its
Purchase Group all or any portion of a Purchaser Interest (or an undivided interest therein)
pursuant to such Conduit Purchaser’s Liquidity Agreement, then (i) until Seller gives notice to the
applicable Managing Agent of another Discount Rate in accordance with
Section 4.4, the
initial Discount Rate for any such Purchaser Interest (or portion thereof or interest therein) so
transferred to the Committed Purchasers shall be the Prime Rate and (ii) until a new Tranche Period
is selected in accordance with
Section 4.3, each such Purchaser Interest shall be deemed to
have a new Tranche Period commencing on the date of such transfer.
Section 4.2
Yield Payments. On each Settlement Date, Seller shall pay to each
Managing Agent (for the benefit of the Committed Purchasers in its Purchase Group) an aggregate
amount equal to the accrued and unpaid Yield for each Tranche Period in accordance with
Article
II.
(a) With consultation from (and approval by) the related Managing Agent, Seller shall from
time to time request Tranche Periods for the Purchaser Interests funded by the Committed Purchasers
in each Purchase Group, provided that, each Tranche Period shall end on a Settlement Date.
Page 6
(b) Seller, upon notice to and consent by the applicable Managing Agent received at least
three (3) Business Days prior to the end of a Tranche Period (the “Terminating Tranche”)
for any Purchaser Interest, may, effective on the last day of the Terminating Tranche: (i) divide
any such Purchaser Interest funded by the Committed Purchasers in the same Purchase Group into
multiple Purchaser Interests, (ii) combine any such Purchaser Interest with one or more other
Purchaser Interests of a Committed Purchaser in the same Purchase Group that have a Terminating
Tranche ending on the same day as such Terminating Tranche or (iii) combine any such Purchaser
Interest with a new Purchaser Interest to be purchased by such Committed Purchaser on the day such
Terminating Tranche ends, provided, that in no event may a Purchaser Interest of any
Conduit Purchaser be combined with a Purchaser Interest of the Committed Purchasers in its Purchase
Group.
Section 4.4
Committed Purchaser Discount Rates. Seller may select the LIBO Rate or
the Prime Rate for each Purchaser Interest funded by the Committed Purchasers. Seller shall by
11:00 a.m. (Chicago time): (i) at least three (3) Business Days prior to the expiration of any
Terminating Tranche with respect to which the LIBO Rate is being requested as a new Discount Rate
and (ii) no later than the Business Day of expiration of any Terminating Tranche with respect to which the Prime Rate is being requested as a new
Discount Rate, give each Managing Agent irrevocable notice of the new Discount Rate requested for
the Purchaser Interest associated with such Terminating Tranche. Until Seller gives notice to the
Agent of another Discount Rate, the initial Discount Rate for any Purchaser Interest transferred to
the Committed Purchasers pursuant to a Liquidity Agreement shall be the Prime Rate.
(a) If any Committed Purchaser notifies its related Managing Agent that it has determined that
funding its Pro Rata Share of the Purchaser Interests of the Committed Purchasers at a LIBO Rate
would violate any applicable law, rule, regulation, or directive of any governmental or regulatory
authority, whether or not having the force of law, or that (i) deposits of a type and maturity
appropriate to match fund its Purchaser Interests at such LIBO Rate are not available or (ii) such
LIBO Rate does not accurately reflect the cost of acquiring or maintaining a Purchaser Interest at
such LIBO Rate, then such Managing Agent shall suspend the availability of such LIBO Rate and
require Seller to select the Prime Rate for any Purchaser Interest accruing Yield at such LIBO
Rate.
(b) If less than all of the Committed Purchasers in any Purchase Group give a notice to the
related Managing Agent pursuant to Section 4.5(a), each Committed Purchaser which gave such
a notice shall be obliged, at the request of Seller or such Financing Institution’s Managing Agent,
to assign all of its rights and obligations hereunder to (i) another Committed Purchaser in its
Purchase Group or (ii) another funding entity nominated by Seller or the related Managing Agent
that is acceptable to the Agent, the applicable Managing Agent and the related Conduit Purchasers
and willing to participate in this Agreement until the date described in clause (i) of the
definition of Facility Termination Date in the place of such notifying Committed Purchaser;
provided that (i) the notifying Committed Purchaser receives payment in full, pursuant to
an Assignment Agreement, of an amount equal to such notifying Committed Purchaser’s share of the
Capital and Yield and all
Page 7
accrued but unpaid fees and other costs and expenses payable in respect of its share of the Purchaser Interests, and (ii) the replacement Committed Purchaser otherwise
satisfies the requirements of Section 12.1(b).
Section 5.1
Representations and Warranties of The Seller Parties. Each Seller Party
hereby represents and warrants to the Agent, the Managing Agents and the Purchasers, as to itself,
as of the date hereof and as of the date of each Incremental Purchase and the date of each
Reinvestment that:
(c) No Conflict. The execution and delivery by such Seller Party of this Agreement
and each other Transaction Document to which it is a party, and the performance of its obligations
hereunder and thereunder do not contravene or violate (i) its certificate or articles of
incorporation or formation, as applicable or by laws or operating agreement, as applicable, (ii)
any law, rule or regulation applicable to it, (iii) any restrictions under any agreement, contract
or instrument to which it is a party or by which it or any of its property is bound, or (iv) any
order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and
do not result in the creation or imposition of any Adverse Claim on assets of such Seller Party or
its Subsidiaries (except as created hereunder), except in the case of clauses (ii), (iii) or (iv),
where such contravention or violation could not reasonably be expected to have a Material Adverse
Effect; and no transaction contemplated hereby requires compliance with any bulk sales act or
similar law.
Page 8
(d)
Governmental Authorization. Other than the filing of the financing statements
required hereunder, no authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due execution and delivery
by such Seller Party of this Agreement and each other Transaction Document to which it is a party
and the performance of its obligations hereunder and thereunder except where the failure to obtain
such authorization or approval or take such action or make such notice or filing could not
reasonably be expected to have a Material Adverse Effect.
(e) Actions, Suits. There are no actions, suits or proceedings pending, or to the
best of such Seller Party’s knowledge, threatened, against or affecting such Seller Party, or any
of its properties, in or before any court, arbitrator or other body, that could reasonably be
expected to have a Material Adverse Effect. Seller is not in default with respect to any order of
any court, arbitrator or governmental body. Servicer is not in default with respect to any order of
any court, arbitrator or governmental body other than such default which could not reasonably be
expected to have a Material Adverse Effect.
Page 9
jurisdictions to perfect Seller’s ownership interest in each Receivable, its Collections and the Related Security.
Page 10
(r) Compliance with Law. Such Seller Party has complied in all respects with all
applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to
which it may be subject except where the failure to comply could not reasonably be expected to have
a Material Adverse Effect. Each Receivable, together with the Contract related thereto and the
Credit and Collection Policy, does not contravene or violate any laws, rules or regulations
applicable thereto (including, without limitation, laws, rules and regulations
relating to truth-in-lending, fair credit billing, fair credit reporting, equal credit opportunity,
fair debt collection practices and privacy) except where such contravention or violation could not
reasonably be expected to have a Material Adverse Effect.
Page 11
delivered pursuant to any Transaction Document was an Eligible Receivable as of the date so identified.
Page 12
agreement, contract or instrument to which it is a party or any of its property is bound, or (iv) any order, writ, judgment, award,
injunction or decree binding on or affecting it or its property, and do not result in the creation
or imposition of any Adverse Claim on its assets. This Agreement has been duly authorized,
executed and delivered by such Committed Purchaser.
(a) Existence and Power. Such Conduit Purchaser is duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation or organization, and has
all corporate power and authority to perform its obligations hereunder.
(b) No Conflict. The execution and delivery by such Conduit Purchaser of this
Agreement and the performance of its obligations hereunder are within its organizational powers,
have been duly authorized by all necessary corporate or limited liability company action, do not
contravene or violate (i) its certificate or articles of incorporation or formation, by-laws or
limited liability company agreement, (ii) any law, rule or regulation applicable to it, (iii) any
restrictions under any agreement, contract or instrument to which it is a party or any of its
property is bound, or (iv) any order, writ, judgment, award, injunction or decree binding on or
affecting it or its property, and do not result in the creation or imposition of any Adverse Claim
on its assets. This Agreement has been duly authorized, executed and delivered by such Conduit
Purchaser.
Page 13
creditors’ rights generally and by general principles of equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law).
Section 6.1
Conditions Precedent to Initial Incremental Purchase. The initial
Incremental Purchase of a Purchaser Interest under this Agreement is subject to the conditions
precedent that (a) the Agent and the Managing Agents shall have received on or before the date of
such purchase those documents listed on
Schedule B, (b) the Agent shall have received
evidence of a marking by Originator and Seller of their respective master data processing records
evidencing the Receivables to reflect the sales thereof contemplated by the Transaction Documents,
(c) Bryant Park Funding LLC shall have received letters from each of S&P and Xxxxx’x which confirm
the short-term debt ratings of its Commercial Paper, and (d) the Agent and the Managing Agents
shall have received all fees and expenses required to be paid on such date pursuant to the terms of
this Agreement, the Fee Letter and the letter agreement dated as of August 14, 2007 between HBI and
X.X. Xxxxxx Securities Inc.
Section 6.2
Conditions Precedent to All Purchases and Reinvestments. Each Incremental
Purchase of a Purchaser Interest and each Reinvestment shall be subject to the further conditions
precedent that (a) in the case of each such Incremental Purchase or Reinvestment: (i) the Servicer
shall have delivered to the Agent and each Managing Agent on or prior to the date of such
Incremental Purchase or Reinvestment, in form and substance satisfactory to the Agent and each
Managing Agent, all Weekly Reports and Settlement Reports as and when due under
Section 8.5
except to the extent that any failure has been waived by the Agent and each Managing Agent and (ii)
upon the Agent’s or any Managing Agent’s request, the Servicer shall have delivered to the Agent
and each Managing Agent at least three (3) Business Days prior to such Incremental Purchase or
Reinvestment an interim Settlement Report showing the amount of Eligible Receivables; (b) the
Facility Termination Date shall not have occurred; (c) the Agent and each Managing Agent shall have
received such other approvals, opinions or documents as it may reasonably request within three (3)
Business Days of such request if such Managing Agent or the Agent, as applicable, reasonably
believes that there has been (i) an adverse change with respect to the Agent’s first priority
perfected security interest in the Receivables, Related Security and Collections (due to a change
in Seller’s or any Originator’s jurisdiction of organization or for any other reason) or (ii) a
material adverse change with respect to the enforceability of the rights and remedies of the Agent,
the Managing Agents and the Purchasers under the Transaction Documents and (d) on the date of each
such Incremental Purchase or Reinvestment, the following statements shall be true (and acceptance
of the proceeds of such Incremental Purchase or Reinvestment shall be deemed a representation and warranty by Seller that such
statements are then true):
(i) the representations and warranties set forth in Section 5.1 are true and correct
on and as of the date of such Incremental Purchase or Reinvestment as though made on and as of such
date;
Page 14
(ii) no event has occurred and is continuing, or would result from such Incremental Purchase
or Reinvestment, that constitutes an Amortization Event, a Potential Amortization Event, a Servicer
Default or a Potential Servicer Default; and
(iii) the Aggregate Capital does not exceed the Purchase Limit and the aggregate Purchaser
Interests do not exceed 100%.
It is expressly understood that each Reinvestment shall, unless otherwise directed by the Agent or
any Purchaser, occur automatically on each day that the Servicer shall receive any Collections
without the requirement that any further action be taken on the part of any Person and
notwithstanding the failure of Seller to satisfy any of the foregoing conditions precedent in
respect of such Reinvestment. The failure of Seller to satisfy any of the foregoing conditions
precedent in respect of any Reinvestment shall give rise to a right of the Agent, which right may
be exercised (and shall be exercised at the direction of the Required Committed Purchasers) at any
time on demand of the Agent, to rescind the related purchase and direct Seller to pay to the Agent
for the benefit of the Purchasers an amount equal to the Collections prior to the Amortization Date
that shall have been applied to the affected Reinvestment.
Section 7.1
Affirmative Covenants of The Seller Parties. Until the date on which the
Aggregate Unpaids have been indefeasibly paid in full and this Agreement terminates in accordance
with its terms, each Seller Party hereby covenants, as to itself, as set forth below:
(i) Annual Reporting. (A) In the case of the Servicer, within 90 days after the close
of each of its fiscal years, audited, unqualified consolidated financial statements (which shall
include balance sheets, statements of income and retained earnings and a statement of cash flows)
for the Servicer for such fiscal year certified in a manner acceptable to the Agent and the
Managing Agents by independent public accountants and (B) in the case of the Seller, within 120
days after the close of each of its fiscal years, unaudited unqualified financial statements (which
shall include balance sheets, statements of income and retained earnings and a statement of cash
flows) for such fiscal year, with respect to which the Seller may omit all footnotes, certified by
its Authorized Officer, provided that such reports and certifications shall be deemed to be
delivered under this Section 7.1(a)(i) upon the document being made available on the SEC’s XXXXX
website.
Page 15
the case of Seller, within 60 days after the close of the first three (3) quarterly periods of each of its fiscal
years, balance sheets of each of the Servicer and Seller as at the close of each such period and
statements of income and a statement of cash flows for each such Person for the period from the
beginning of such fiscal year to the end of such quarter and with respect to which the Seller may
omit all footnotes, all certified by its respective Authorized Officer, provided that such
reports and certifications shall be deemed to be delivered under this Section 7.1(a)(ii)
upon the document being made available on the SEC’s XXXXX website.
Page 16
(i) Such Seller Party will comply in all respects with all applicable laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject
except, in each case, where a failure to comply could not reasonably be expected to have a Material
Adverse Effect.
(ii) Such Seller Party will preserve and maintain its corporate existence, rights, franchises
and privileges in the jurisdiction of its incorporation,
Page 17
and qualify and remain qualified in good standing as a foreign corporation in each
jurisdiction where its business is conducted except, in each case, where a failure to do so could
not reasonably be expected to have a Material Adverse Effect.
(d) Audits. Such Seller Party will furnish to the Agent and each Managing Agent from
time to time such information with respect to it and the Receivables as the Agent or any Managing
Agent may reasonably request. Such Seller Party will, from time to time during regular business
hours as requested by the Agent or any Managing Agent upon reasonable notice and at the sole cost
of such Seller Party, permit the Agent and the Managing Agents, or their agents or representatives
(and shall cause Originator to permit the Agent, the Managing Agents or their agents or
representatives), (i) to examine and make copies of and abstracts from all Records in the
possession or under the control of such Person relating to the Receivables and the Related
Security, including, without limitation, the related Contracts, and (ii) to visit the offices and
properties of such Person for the purpose of examining such materials described in clause (i)
above, and to discuss matters relating to such Person’s financial condition or the Receivables and
the Related Security or any Person’s performance under any of the Transaction Documents or any
Person’s performance under the Contracts and, in each case, with any of the officers or employees
of Seller or the Servicer having knowledge of such matters; provided that unless either (i) an
Amortization Event shall have occurred and be continuing at the time any such audit is requested by
the Agent or any Managing Agent, or (ii) the audits previously conducted at the expense of the
Seller and the Servicer during such calendar year have not produced audit results reasonably
satisfactory to the Agent or any Managing Agent, neither Seller nor Servicer shall be required to
reimburse the Agent or any Managing Agent for the costs or expenses in respect of more than one
audit by a third party accounting or auditing firm engaged by the Agent or any Managing Agent or
any examinations or visits by the Agent, Managing Agents or any of their Agents or representative
during any calendar year.
(i) The Servicer will (and will cause Originator to) maintain and implement administrative and
operating procedures (including, without limitation, an ability to recreate records evidencing
Receivables in the event of the destruction of the originals thereof), and keep and maintain all
documents, books, records and other information reasonably necessary or advisable for the
collection of all Receivables (including, without limitation, records adequate to permit the prompt
identification of each new Receivable and all Collections of and adjustments to each existing
Receivable). The Servicer will (and will cause Originator to) give the Agent and each Managing
Agent notice of any material change in the administrative and operating procedures referred to in
the previous sentence.
(ii) Such Seller Party will (and will cause Originator to) (A) on or prior to the date hereof,
xxxx its master data processing records and other books and records relating to the Purchaser
Interests with a legend, acceptable to the Agent, describing the Purchaser Interests and (B) upon
the request of the Agent (x) xxxx each Contract constituting an instrument, chattel paper, or a
certificated security under the UCC with a legend describing the Purchaser Interests and (y)
deliver to the Agent all Contracts
Page 18
(including, without limitation, all multiple originals of any such Contract) relating to the Receivables to the extent any such Contract constitutes an
instrument, chattel paper or a certificated security under the UCC.
(h) Ownership. Seller will (or will cause Originator to) take all necessary action to
(i) vest legal and equitable title to the Receivables, the Related Security and the Collections
purchased under the Receivables Sale Agreement irrevocably in Seller, free and clear of any Adverse
Claims other than Adverse Claims in favor of the Agent and the Purchasers (including,
without limitation, the filing of all financing statements or other similar instruments or
documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to
perfect Seller’s interest in such Receivables, Related Security and Collections and such other
action to perfect, protect or more fully evidence the interest of Seller therein as the Agent or
any Managing Agent may reasonably request), and (ii) establish and maintain, in favor of the Agent,
for the benefit of the Purchasers, a valid and perfected first priority undivided percentage
ownership interest (and/or a valid and perfected first priority security interest) in all
Receivables, Related Security and Collections to the full extent contemplated herein, free and
clear of any Adverse Claims other than Adverse Claims in favor of the Agent for the benefit of the
Purchasers (including, without limitation, the filing of all financing statements
or other similar instruments or documents necessary under the UCC (or any comparable law) of all
appropriate jurisdictions to perfect the Agent’s (for the benefit of the Purchasers) interest in
such Receivables, Related Security and Collections and such other action to perfect, protect or
more fully evidence the interest of the Agent for the benefit of the Purchasers as the Agent or any
Managing Agent may reasonably request).
Page 19
reasonable steps, including, without limitation, all steps that the Agent, any Managing Agent or any Purchaser may from time to time reasonably
request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third
parties that Seller is an entity with assets and liabilities distinct from those of Originator and
any Affiliates thereof (each an “HBI Party”) and not just a division of an HBI Party. Without
limiting the generality of the foregoing and in addition to the other covenants set forth herein,
Seller will:
(A) conduct its own business in its own name and require that all full time employees of
Seller, if any, identify themselves as such and not as employees of any HBI Party (including,
without limitation, by means of providing appropriate employees with business or identification
cards identifying such employees as Seller’s employees);
(B) compensate all employees, consultants and agents directly, from Seller’s own funds, for
services provided to Seller by such employees, consultants and agents and, to the extent any
employee, consultant or agent of Seller is also an employee, consultant or agent of any HBI Party
thereof, allocate the compensation of such employee, consultant or agent between Seller and such
HBI Party, on a basis that reflects the services rendered to Seller and such HBI Party;
(C) clearly identify its offices (by signage or otherwise) as its offices and, if such office
is located in the offices of any HBI Party, Seller shall lease such office at a fair market rent;
(D) have a separate telephone number, which will be answered only in its name and separate
stationery, invoices and checks in its own name;
(E) conduct all transactions with Originator and the Servicer (including, without limitation,
any delegation of its obligations hereunder as Servicer) strictly on an arm’s length basis,
allocate all overhead expenses (including, without limitation, telephone and other utility charges)
for items shared between Seller and Originator on the basis of actual use to the extent practicable
and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors or Managers consisting of three (3) members, at
least one (1) member of which is an Independent Director or Manager, as applicable;
(G) observe all corporate formalities as a distinct entity, and ensure that all corporate
actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B)
the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence
in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller,
are duly authorized by unanimous vote of its Board of Directors (including the Independent
Director);
(H) maintain Seller’s books and records separate from those of any HBI Party and otherwise
readily identifiable as its own assets rather than assets of any HBI Party;
Page 20
(I) prepare its financial statements separately from those of Originator and insure that any
consolidated financial statements of any HBI Party that include Seller and that are filed with the
Securities and Exchange Commission or any other governmental agency have notes clearly stating that
Seller is a separate corporate entity and that its assets will be available first and foremost to
satisfy the claims of the creditors of Seller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of
Seller separate from, and not commingled with, those of any HBI Party and only maintain bank accounts or other depository accounts to which Seller
alone is the account party, into which Seller alone makes deposits and from which Seller alone (or
the Agent hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses from Seller’s own assets (except for certain
payments by Originator or other Persons pursuant to allocation arrangements that comply with the
requirements of this Section 7.1(i));
(L) operate its business and activities such that: it does not engage in any business or
activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement,
contract, lease or other undertaking, other than the transactions contemplated and authorized by
this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or
suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1)
as a result of the endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business, (2) the incurrence of obligations under this
Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale
Agreement, to make payment to Originator thereunder for the purchase of Receivables from Originator
under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary
course of business of the type otherwise contemplated by this Agreement;
(M) maintain its corporate charter in conformity with this Agreement, such that it does not
amend, restate, supplement or otherwise modify its Limited Liability Company Agreement in any
respect that would impair its ability to comply with the terms or provisions of any of the
Transaction Documents, including, without limitation, Section 7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale
Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify
the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or
waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise
grant any indulgence thereunder, without (in each case) the prior written consent of the Agent and
the Required Committed Purchasers;
(O) maintain its corporate separateness such that it does not merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series
of transactions, and except as otherwise
Page 21
contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the
assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any
Subsidiary.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale
Agreement) and refrain from making any dividend, distribution, redemption of capital stock or
payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to
be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and
assumptions set forth in the opinion issued by Xxxxxxxx & Xxxxx LLP, as counsel for Seller, in
connection with the closing or initial Incremental Purchase under this Agreement and relating to substantive consolidation issues, and in the certificates
accompanying such opinion, remain true and correct in all material respects at all times.
(j) Collections. Such Seller Party will (1) direct all Obligors to remit Collections
directly to a Lock-Box or a Collection Account, (2) cause all proceeds from all Lock-Boxes to be
directly deposited by a Collection Bank into a Collection Account and (3) cause each Lock-Box and
Collection Account to be subject at all times to a Collection Account Agreement that is in full
force and effect. In the event any payments relating to Receivables are remitted directly to
Seller or any Affiliate of Seller, Seller will remit (or will cause all such payments to be
remitted) directly to a Collection Bank and deposited into a Collection Account within one (1)
Business Day following receipt thereof, and, at all times prior to such remittance, Seller will
itself hold or, if applicable, will cause such payments to be held in trust for the exclusive
benefit of the Agent, the Managing Agents and the Purchasers. Seller will maintain exclusive
ownership, dominion and control (subject to the terms of this Agreement) of each Lock-Box and
Collection Account and shall not grant the right to take dominion and control of any Lock-Box or
Collection Account at a future time or upon the occurrence of a future event to any Person, except
to the Agent as contemplated by this Agreement.
Page 22
description of the method Seller and Servicer will use to identify all Excluded Receivables on its respective systems, books
and records.
Section 7.2
Negative Covenants of The Seller Parties. Until the date on which the
Aggregate Unpaids have been indefeasibly paid in full and this Agreement terminates in accordance
with its terms, each Seller Party hereby covenants, as to itself, that:
(d) Sales, Liens. Seller will not sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, or create or suffer to exist any Adverse
Claim upon (including, without limitation, the filing of any financing statement) or with respect
to, any Receivable, Related Security or Collections, or upon or with respect to any Contract under
which any Receivable arises, or any Lock-Box or Collection Account, or assign any right to receive
income with respect thereto (other than, in each case, the creation of the interests therein in
favor of the Agent and the Purchasers provided for herein), and Seller will defend the right, title
and interest of the Agent and the Purchasers in, to and under any of the foregoing property,
against all claims of third parties claiming through or under Seller or Originator. Seller will
not create or suffer to exist any
Page 23
mortgage, pledge, security interest, encumbrance, lien, charge or other similar arrangement on any of its inventory.
(a) The servicing, administration and collection of the Receivables shall be conducted by such
Person (the “Servicer”) so designated from time to time in accordance with this Section
8.1. HBI is hereby designated as, and hereby agrees to perform the duties and obligations of,
the Servicer pursuant to the terms of this Agreement. The Agent, with the consent or at the
direction of the Required Committed Purchasers, may at any time after the occurrence and during the
continuance of a Servicer Default designate as Servicer any Person to succeed HBI or any successor
Servicer.
(b) Without the prior written consent of the Agent and the Required Committed Purchasers, HBI
shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person
other than (i) Seller and (ii) with respect to certain Charged-Off Receivables, outside collection
agencies in accordance with its customary practices. Seller shall not be permitted to further
delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it
by HBI. The Agent may with the consent of, and shall at the direction of the Required Committed
Purchasers, at any time following the occurrence of a Servicer Default, designate as Servicer any
Person other than HBI, whereupon all duties and responsibilities of HBI as Servicer hereunder shall
cease and all duties and responsibilities theretofore delegated by HBI to Seller as sub-servicer
may, at
Page 24
the discretion of the Agent, be terminated forthwith on notice given by the Agent to HBI and
to Seller.
(c) Notwithstanding the foregoing subsection (b), unless and until HBI is replaced as
Servicer, (i) HBI shall be and remain primarily liable to the Agent, the Managing Agents and the
Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer
hereunder and (ii) the Managing Agents, the Agent and the Purchasers shall be entitled to deal
exclusively with HBI in matters relating to the discharge by the Servicer of its duties and
responsibilities hereunder. The Managing Agents, the Agent and the Purchasers shall not be
required to give notice, demand or other communication to any Person other than HBI in order for
communication to the Servicer and its sub-servicer or other delegate with respect thereto to be
accomplished. HBI, at all times that it is the Servicer, shall be responsible for providing any
sub-servicer or other delegate of the Servicer with any notice given to the Servicer under this
Agreement and, if HBI is no longer the Servicer hereunder, any replacement Servicer shall be
responsible for providing any such notice to any sub-servicer or delegate.
(a) The Servicer shall take or cause to be taken all such actions as may be necessary or
advisable to collect each Receivable from time to time, all in accordance with applicable laws,
rules and regulations, with reasonable care and diligence, and in accordance with the Credit and
Collection Policy.
The Servicer will instruct all Obligors to pay all Collections directly to a Lock-Box or
Collection Account. The Servicer shall effect a Collection Account Agreement substantially in the
form of Exhibit VI with each Collection Bank. In the case of any remittances received in
any Lock-Box or Collection Account that shall have been identified, to the satisfaction of the
Servicer, to not constitute Collections or other proceeds of the Receivables or the Related
Security, the Servicer shall promptly remit such items to the Person identified to it as being the
owner of such remittances. From and after the date the Agent delivers to any Collection Bank a
Collection Notice pursuant to Section 8.3, the Agent may request that the Servicer, and the
Servicer thereupon promptly shall instruct all Obligors with respect to the Receivables, to remit
all payments thereon to a new depositary account specified by the Agent and, at all times
thereafter, Seller and the Servicer shall not deposit or otherwise credit, and shall not permit any
other Person to deposit or otherwise credit to such new depositary account any cash or payment item
other than Collections.
(b) The Servicer shall administer the Collections in accordance with the procedures described
herein and in Article II. The Servicer shall set aside and hold in trust for the account
of Seller and the Purchasers their respective shares of the Collections in accordance with
Article II. The Servicer shall, upon the request of the Agent, segregate, in a manner
acceptable to the Agent, all cash, checks and other instruments received by it from time to time
constituting Collections from the general funds of the Servicer or Seller prior to the remittance
thereof in accordance with Article II. If the Servicer shall be required to segregate
Collections pursuant to the preceding sentence, the Servicer shall segregate and deposit with a
bank designated by the Agent such allocable share of Collections of
Page 25
Receivables set aside for the Purchasers on the first Business Day following receipt by the
Servicer of such Collections, duly endorsed or with duly executed instruments of transfer.
(c) The Servicer may, in accordance with the Credit and Collection Policy, extend the maturity
of any Receivable or adjust the Outstanding Balance of any Receivable as the Servicer determines to
be appropriate to maximize Collections thereof; provided, however, that such
extension or adjustment shall not alter the status of such Receivable as a Delinquent Receivable,
Defaulted Receivable or Charged-Off Receivable or limit the rights of the Agent, the Managing
Agents or the Purchasers under this Agreement. At any time after the occurrence of an Amortization
Event, notwithstanding anything to the contrary contained herein, the Agent shall have the absolute
and unlimited right to direct the Servicer to commence or settle any legal action with respect to
any Delinquent Receivable, Defaulted Receivable or Charged-Off Receivable or to foreclose upon or
repossess any Related Security.
(d) The Servicer shall hold in trust for Seller and the Purchasers all Records that (i)
evidence or relate to the Receivables, the related Contracts and Related Security or (ii) are
otherwise necessary or desirable to collect the Receivables and shall, as soon as practicable upon
demand of the Agent, deliver or make available to the Agent all such Records, at a place selected
by the Agent. The Servicer shall, from time to time at the request of the Agent or any Managing
Agent, furnish to the Agent or such Managing Agent (promptly after any such request) a calculation
of the amounts set aside for the Purchasers pursuant to Article II.
(e) Any payment by an Obligor in respect of any indebtedness owed by it to Originator or
Seller shall, except as otherwise specified by such Obligor or otherwise required by contract or
law and unless otherwise instructed by the Agent, be applied as a Collection of any Receivable of
such Obligor (starting with the oldest such Receivable) to the extent of any amounts then due and
payable thereunder before being applied to any other receivable or other obligation of such
Obligor.
Section 8.3
Collection Notices. At any time after the occurrence of an Amortization
Event, the Agent is authorized at any time to date and to deliver to the Collection Banks the
Collection Notices. Seller hereby transfers to the Agent for the benefit of the Purchasers,
effective when the Agent delivers such notice, the exclusive ownership and control of each Lock-Box
and the Collection Accounts. In case any authorized signatory of Seller whose signature appears on
a Collection Account Agreement shall cease to have such authority before the delivery of such
notice, such Collection Notice shall nevertheless be valid as if such authority had remained in
force. Seller hereby authorizes the Agent, and agrees that the Agent shall be entitled to (i)
endorse Seller’s name on checks and other instruments representing Collections, (ii) enforce the
Receivables, the related Contracts and the Related Security and (iii) take such action as shall be
necessary or desirable to cause all cash, checks and other instruments constituting Collections of
Receivables to come into the possession of the Agent rather than Seller.
Page 26
Purchasers of their rights hereunder shall not release the Servicer, Originator or Seller from
any of their duties or obligations with respect to any Receivables or under the related Contracts.
None of the Agent, the Managing Agents and the Purchasers shall have any obligation or liability
with respect to any Receivables or related Contracts, nor shall any of them be obligated to perform
the obligations of Seller.
Section 8.5
Reports. The Servicer shall prepare and forward to each Managing Agent
and the Agent (i) at any time during which HBI’s unsecured long-term debt rating is B- or lower by
S&P and B3 or lower by Xxxxx’x, on each Business Day, a Daily Report which will include information
regarding the Receivables as of the previous Business Day, (ii) on Wednesday of each week (or if
such Wednesday is not a Business Day, on the immediately preceding Business Day), a Weekly Report
which will include information regarding the Receivables for the seven (7)-day period ending (and
including) the immediately preceding Friday, (iii) on the third Thursday of each month (or, if such
day is not a Business Day, on the next succeeding Business Day), and at such other additional times
as the Agent or any Managing Agent shall request, a Settlement Report which will include
information regarding the Receivables for the most recently ended Calendar Month and (iv) at such
times as the Agent or any Managing Agent shall request, a listing by Obligor of all Receivables
together with an aging of such Receivables.
Section 8.6
Servicing Fees. In consideration of HBI’s agreement to act as Servicer
hereunder, the Purchasers hereby agree that, so long as HBI shall continue to perform as Servicer
hereunder, Seller shall pay over to HBI a fee (the “
Servicing Fee”) on each Settlement
Date, in arrears for the immediately preceding month, equal to 1.0% per annum of the average
aggregate Outstanding Balance of all Receivables during such period, as compensation for its
servicing activities.
Section 8.7
Servicer Default. The occurrence of any of the following shall constitute
a “
Servicer Default”.
(a) any Amortization Event in respect of the Servicer, other than the Amortization Events
described in Sections 9.1(e) and (f); or
(b) any collection, billing or accounting systems failure which has a Material Adverse Effect
on the Servicer’s ability to either collect the Receivables or perform its obligations under this
Agreement.
Section 9.1
Amortization Events. The occurrence of any one or more of the following
events shall constitute an Amortization Event:
(a) (i) Any Seller Party or the Originator shall fail to make any payment or deposit required
hereunder or under any other Transaction Document when due and, in the case of a payment or deposit
in respect of Capital, Yield or any fees due under the Fee Letter, such failure continues for two
(2) Business Days and, in the case of any such
Page 27
payment or deposit which is not in respect of Capital, Yield or fees due under the Fee Letter,
such failure continues for five (5) Business Days;
(ii) Any Seller Party or the Originator shall fail to perform or observe any term, covenant or
agreement contained in Sections 7.1(a) (Financial Reporting), 7.1(b) (Notices) ,
7.1(c)(ii) (Preservation of Limited Liability Company or Corporate Existence),
7.1(d) (Audits), 7.1(e) (Keeping and Marking of Records and Books), 7.1(f)
(Compliance with Contracts and Credit and Collection Policy), 7.1(g) (Performance and
Enforcement of Receivables Sale Agreement), 7.1(h) (Ownership), 7.1(i) (Purchasers’
Reliance), 7.1(j) (Collections), 7.1(l) (Payment to Originator), 7.2
(Negative Covenants of the Seller Parties) or 8.5 (Reports) and any such failure continues
for three (3) Business Days;
(iii) Seller or Originator shall fail to perform or observe any other term, covenant or
agreement contained herein or in any other Transaction Document not otherwise specifically
described in this Section 9.1 and such failure shall remain unremedied for five (5)
Business Days; or
(iv) the Servicer shall fail to perform or observe any other term, covenant or agreement
contained herein or in any other Transaction Document not otherwise specifically described in this
Section 9.1 and such failure shall remain unremedied for ten (10) Business Days.
(b) Any representation, warranty, certification or statement made by any Seller Party or the
Originator in this Agreement, any other Transaction Document or in any other document delivered
pursuant hereto or thereto shall prove to have been incorrect when made or deemed made.
(c) Failure of Seller to pay any Indebtedness when due or the failure of any other Seller
Party or the Originator to pay Indebtedness when due in excess of $50,000,000 in the aggregate, or
the default by any Seller Party or the Originator in the performance of any term, provision or
condition contained in any agreement under which any such Indebtedness was created or is governed,
the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause,
such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of any
Seller Party or the Originator shall be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) (i) Any Seller Party, the Originator or, to the extent that it could reasonably be
expected to have a Material Adverse Effect, any of their Subsidiaries shall generally not pay its
debts as such debts become due or shall admit in writing its inability to pay its debts generally
or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be
instituted by or against any Seller Party, the Originator or, to the extent that it could
reasonably be expected to have a Material Adverse Effect, any of their Subsidiaries seeking to
adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or
Page 28
reorganization or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or any substantial part of its
property and, if any such proceeding is not commenced by a Seller Party, the Originator or any of
their Subsidiaries, such proceeding shall result in the entry of an order for relief or shall
remain for 60 days undismissed, undischarged, unstayed or unbonded pending appeal or (iii) any
Seller Party, the Originator or, to the extent that it could reasonably be expected to have a
Material Adverse Effect, any of their Subsidiaries shall take any corporate action to authorize any
of the actions set forth in clauses (i) or (ii) above in this subsection (d).
(e) Seller shall fail to comply with the terms of Section 2.6.
(f) As at the end of any Calendar Month:
|
(i) |
|
the average of the
Delinquency Ratios as of the end of such Calendar Month and
the two preceding Calendar Months shall exceed 4.0%; |
|
|
(ii) |
|
the average of the
Loss-to-Liquidation Ratios as of the end of such Calendar
Month and the two preceding Calendar Months shall exceed
2.25%; or |
|
|
(iii) |
|
the average of the
Dilution Ratios as of the end of such Calendar Month and
the two preceding Calendar Months shall exceed 13.5%. |
(g) A Change of Control shall occur.
(h) (i) As of the last day of any Fiscal Quarter occurring during any period set forth below,
HBI permits the Leverage Ratio to be greater than the ratio set forth opposite such period:
|
|
|
Period |
|
Leverage Ratio |
Each Fiscal Quarter ending between the date hereof and
October 15, 2007
|
|
4.75:1.00 |
|
|
|
Each Fiscal Quarter ending between October 16, 2007 and
April 15, 2008
|
|
4.50:1.00 |
|
|
|
Each Fiscal Quarter ending between April 16, 2008 and July
15, 2008
|
|
4.25:1.00 |
|
|
|
Each Fiscal Quarter ending between July 16, 2008 and
October 15, 2008
|
|
4.00:1.00 |
|
|
|
Each Fiscal Quarter ending between October 16, 2008 and
April 15, 2009
|
|
3.75:1.00 |
|
|
|
Each Fiscal Quarter ending between April 16, 2009 and July
15, 2009
|
|
3.50:1.00 |
|
|
|
Each Fiscal Quarter ending between July 16, 2009 and
|
|
3.25:1.00 |
Page 29
|
|
|
Period |
|
Leverage Ratio |
October 15, 2009 |
|
|
|
|
|
Each Fiscal Quarter thereafter
|
|
3.00:1.00 |
; or
(ii) As of the last day of any Fiscal Quarter occurring during any period set forth below, HBI
permits the Interest Coverage Ratio to be less than the ratio set forth opposite such period:
|
|
|
Period |
|
Interest Coverage Ratio |
Each Fiscal Quarter ending between the
date hereof and January 15, 2008
|
|
2.25:1.00 |
|
|
|
Each Fiscal Quarter ending between
January 16, 2008 and October 15, 2008
|
|
2.50:1.00 |
|
|
|
Each Fiscal Quarter ending between
October 16, 2008 and April 15, 2009
|
|
2.75:1.00 |
|
|
|
Each Fiscal Quarter ending between April
16, 2009 and October 15, 2009
|
|
3.00:1.00 |
|
|
|
Each Fiscal Quarter thereafter
|
|
3.25:1.00 |
; or
(i) The Agent, for the benefit of the Purchasers, shall at any time for any reason fail to
have a valid and perfected first priority undivided percentage ownership interest (and/or a valid
and perfected first priority security interest) in all Receivables, Related Security Collections
and Collection Accounts, free and clear of any Adverse Claims other than Adverse Claims in favor of
the Agent for the benefit of the Purchasers.
(j) (i) One or more final judgments for the payment of money shall be entered against Seller
or (ii) any (A) judgment or order for the payment of money individually or in the aggregate in
excess of $50,000,000 (exclusive of any amounts fully covered by insurance (less any applicable
deductible) or an indemnity by any other third party Person and as to which the insurer or such
Person has acknowledged its responsibility to cover such judgment or order not denied in writing)
shall be rendered against Servicer, Originator or any of their respective Subsidiaries and such
judgment shall not have been vacated or discharged or stayed or bonded pending appeal within 45
days after the entry thereof or enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (B) non-monetary judgment or order shall be rendered against
Servicer, Originator or any of their respective Subsidiaries that has had, or could reasonably be
expected to have, a Material Adverse Effect.
Page 30
(k) (i) a “Termination Event” under and as defined in the Receivables Sale Agreement shall
occur under the Receivables Sale Agreement or (ii) Originator shall for any reason cease to
transfer, or cease to have the legal capacity to transfer, or otherwise be incapable of
transferring Receivables to Seller under the Receivables Sale Agreement.
(l) This Agreement shall terminate in whole or in part (except in accordance with its terms),
or shall cease to be effective or to be the legally valid, binding and enforceable obligation of
Seller or Servicer, or either Seller Party or Originator shall directly or indirectly contest in
any manner such effectiveness, validity, binding nature or enforceability of this Agreement.
(m) A Servicer Default occurs.
All capitalized terms used in clause (h) above shall have the meaning assigned to such terms in
Exhibit XII hereto.
Section 9.2
Remedies. Upon the occurrence and during the continuation of an
Amortization Event, the Agent may, or upon the direction of the Required Committed Purchasers
shall, take any of the following actions: (i) declare the Amortization Date to have occurred,
whereupon the Amortization Date shall forthwith occur, without demand, protest or further notice of
any kind, all of which are hereby expressly waived by each Seller Party; provided, however, that
upon the occurrence of an Amortization Event described in
Section 9.1(d)(ii), or of an
actual or deemed entry of an order for relief with respect to any Seller Party under the Federal
Bankruptcy Code, the Amortization Date shall automatically occur, without demand, protest or any
notice of any kind, all of which are hereby expressly waived by each Seller Party, (ii) to the
fullest extent permitted by applicable law, declare that interest at the Default Rate shall accrue
with respect to any of the Aggregate Unpaids outstanding at such time, (iii) deliver the Collection
Notices to the Collection Banks, and (iv) notify Obligors of the Purchasers’ interest in the
Receivables. The aforementioned rights and remedies shall be without limitation, and shall be in
addition to all other rights and remedies of the Agent, the Managing Agents and the Purchasers
otherwise available under any other provision of this Agreement, by operation of law, at equity or
otherwise, all of which are hereby expressly preserved, including, without limitation, all rights
and remedies provided under the UCC, all of which rights shall be cumulative.
Section 10.1
Indemnities by Seller. Without limiting any other rights that the Agent,
the Managing Agents or any Purchaser may have hereunder or under applicable law, Seller hereby
agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and
their respective assigns, officers, directors, agents and employees (each an “
Indemnified
Party”) from and against any and all damages, losses, claims, taxes, liabilities, out-of-pocket
costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which
attorneys may be employees of the Agent, such
Page 31
Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively
referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising
out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a
Purchaser of an interest in the Receivables, excluding, however:
(a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction
holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the
part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same include losses in respect of Receivables that
are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the
related Obligor;
(c) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive
office is located, on or measured by the overall net income of such Indemnified Party to the extent
that the computation of such taxes is consistent with the characterization for income tax purposes
of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to
Seller secured by the Receivables, the Related Security, the Collection Accounts and the
Collections; or
(d) Indemnified Amounts to the extent they resulted from an action brought by any Indemnified
Party against any other Indemnified Party not involving any Seller Party, Originator or any
Subsidiary of any Seller Party or Originator;
provided, however, that nothing contained in this sentence shall limit the
liability of Seller or limit the recourse of the Indemnified Parties to Seller for amounts
otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without
limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified
Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible
receivables, regardless of whether reimbursement therefor would constitute recourse to Seller)
relating to or resulting from:
(i) any representation or warranty made by Seller (or any officers of Seller) under or in
connection with this Agreement, any other Transaction Document or any other information or report
delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect
when made or deemed made;
(ii) the failure by Seller to comply with any applicable law, rule or regulation with respect
to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract
included therein with any such applicable law, rule or regulation or any failure of Originator to
keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of Seller to perform its duties, covenants or other obligations in
accordance with the provisions of this Agreement or any other Transaction Document;
Page 32
(iv) any products liability, personal injury or damage suit, or other similar claim arising
out of or in connection with merchandise, insurance or services that are the subject of any
Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor)
of the Obligor to the payment of any Receivable (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 it in accordance with its terms), or any other claim resulting from the
sale of the merchandise or service related to such Receivable or the furnishing or failure to
furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or
any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an
Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other
investigation, litigation or proceeding relating to Seller in which any Indemnified Party becomes
involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as
a result of such Obligor being immune from civil and commercial law and suit on the grounds of
sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership
of any Receivable and the Related Security and Collections with respect thereto from Originator,
free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to
give reasonably equivalent value to Originator under the Receivables Sale Agreement in
consideration of the transfer by Originator of any Receivable, or any attempt by any Person to void
such transfer under statutory provisions or common law or equitable action;
(x) any failure to vest and maintain vested in the Agent for the benefit of the Purchasers, or
to transfer to the Agent for the benefit of the Purchasers, legal and equitable title to, and
ownership of, a first priority perfected undivided percentage ownership interest (to the extent of
the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the
Related Security, the Collections and the Collection Accounts, free and clear of any Adverse Claim
(except as created by the Transaction Documents);
(xi) the failure to have filed, 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 Receivable, the Related Security and Collections with respect thereto, and the
proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any
subsequent time;
Page 33
(xii) any action or omission by the Seller which reduces or impairs the rights of the Agent,
the Managing Agents or the Purchasers with respect to any Receivable or the value of any such
Receivable;
(xiii) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder
under statutory provisions or common law or equitable action; or
(xiv) the failure of any Receivable included in the calculation of the Net Receivables Balance
as an Eligible Receivable to be an Eligible Receivable at the time so included.
Section 10.2
Indemnities by Servicer. Without limiting any other rights that the
Agent, the Managing Agents or any Purchaser may have hereunder or under applicable law, the
Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified
Amounts awarded against or incurred by any of them relating to or resulting from:
(i) any representation or warranty made by the Servicer (or any officers of Servicer) under or
in connection with this Agreement, any other Transaction Document or any other information or
report delivered by Servicer pursuant hereto or thereto, which shall have been false or incorrect
when made or deemed made;
(ii) the failure by Servicer to comply with any applicable law, rule or regulation with
respect to any Receivable or Contract related thereto;
(iii) any failure of Servicer to perform its duties, covenants or other obligations in
accordance with the provisions of this Agreement or any other Transaction Document;
(iv) the commingling of Collections of Receivables at any time with other funds;
(v) any investigation, litigation or proceeding relating to Servicer in which any Indemnified
Party becomes involved as a result of any of the transactions contemplated hereby;
(vi) any action or omission by the Servicer which reduces or impairs the rights of the Agent,
the Managing Agents or the Purchasers with respect to any Receivable or the value of any such
Receivable; or
(vii) the failure of any Receivable included in the calculation of the Net Receivables Balance
as an Eligible Receivable to be an Eligible Receivable at the time so included.
Notwithstanding the foregoing, Servicer shall not have any liability under this Section
10.2 for:
Page 34
(a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction
holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the
part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same include losses in respect of Receivables that
are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the
related Obligor;
(c) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive
office is located, on or measured by the overall net income of such Indemnified Party to the extent
that the computation of such taxes is consistent with the characterization for income tax purposes
of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to
Seller secured by the Receivables, the Related Security, the Collection Accounts and the
Collections; or
(d) Indemnified Amounts to the extent they resulted from an action brought by any Indemnified
Party against any other Indemnified Party not involving any Seller Party, Originator or any
Subsidiary of any Seller Party or Originator;
provided, however, that nothing contained in this sentence shall limit the
liability of Servicer or limit the recourse of the Indemnified Parties to Servicer for amounts
otherwise specifically provided to be paid by Servicer under the terms of this Agreement.
If after the date hereof, any Funding Source shall be charged any fee, expense or increased
cost on account of the adoption of any applicable law, rule or regulation (including any applicable
law, rule or regulation regarding capital adequacy) or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance with any request or
directive (whether or not having the force of law) of any such authority, central bank or
comparable agency (a “Regulatory Change”): (i) that subjects any Funding Source to any
charge or withholding on or with respect to any Funding Agreement or a Funding Source’s obligations
under a Funding Agreement, or on or with respect to the Receivables, or changes the basis of
taxation of payments to any Funding Source of any amounts payable under any Funding Agreement
(except for changes in the rate of tax on the overall net income of a Funding Source or taxes
excluded by Section 10.1) or (ii) that imposes, modifies or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against assets of, deposits
with or for the account of a Funding Source, or credit extended by a Funding Source pursuant to a
Funding Agreement or (iii) that imposes any other condition the result of which is to increase the
cost to a Funding Source of performing its obligations under a Funding Agreement, or to reduce the
rate of return on a Funding Source’s capital as a consequence of its obligations under a Funding
Agreement, or to reduce the amount of any sum received or receivable by a Funding Source under a
Funding Agreement or to require any payment
Page 35
calculated by reference to the amount of interests or loans held or interest received by it,
then, within five (5) Business Days after demand by the applicable Managing Agent, Seller shall pay
to the applicable Managing Agent, for the benefit of the relevant Funding Source, such amounts
charged to such Funding Source or such amounts to otherwise compensate such Funding Source for such
increased cost or such reduction, in each case, solely to the extent that such increased cost or
such reduction is attributable to the financing, ownership, commitment to fund, funding or
maintenance of any Purchaser Interest (as opposed to the assets generally held by the Indemnified
Parties and not related to this Agreement, the Transaction Documents and the transactions
contemplated thereby).
Section 10.4
Other Costs and Expenses. Seller shall pay to the Agent, the Managing
Agents and the Purchasers within five (5) Business Days after demand all reasonable costs and
out-of-pocket expenses in connection with the preparation, execution, delivery and administration
of this Agreement, the transactions contemplated hereby and the other documents to be delivered
hereunder, including without limitation, the cost of the Conduit Purchasers’ auditors auditing the
books, records and procedures of Seller (subject to the limitation set forth in
Section
7.1(d)), reasonable fees of the ratings agencies, reasonable fees and out of pocket expenses of
legal counsel for each Conduit Purchaser, each Managing Agent and the Agent (which such counsel may
be employees of such Conduit Purchaser, such Managing Agent or the Agent) with respect thereto and
with respect to advising each Conduit Purchaser, each Managing Agent and the Agent as to their
respective rights and remedies under this Agreement;
provided that in connection with the
preparation, execution and delivery of this Agreement, Seller shall be responsible for the
reasonable fees and out-of-pocket expenses of only one legal counsel for the Agent, the Managing
Agent and the Purchasers party hereto on the date hereof,
provided further that
Seller shall not be responsible for the legal fees and expenses of more than one outside counsel
(in addition to any local counsel) for all Persons entitled to payment of such fees and expenses
under this
Section 10.4 unless, as reasonably determined by such Person or its counsel,
representation of all such Persons by the same counsel would be inappropriate due to actual or
potential differing interests among them. Seller shall pay to the Agent, each Managing Agent and
each Purchaser within five (5) Business Days after demand any and all costs and expenses of the
Agent, such Managing Agent and the Purchasers, if any, including reasonable counsel fees and
expenses in connection with the enforcement of this Agreement and the other documents delivered
hereunder and in connection with any restructuring or workout of this Agreement or such documents,
or the administration of this Agreement following an Amortization Event.
Section 11.1
Authorization and Action. Each Purchaser hereby designates and appoints
(i) JPMorgan to act as its Agent hereunder and under each other Transaction Document, and (ii) the
Managing Agent in its Purchase Group to act as its Managing Agent hereunder and under each other
Transaction Document, and authorizes the Agent and such Purchaser’s Managing Agent, as the case may
be, to take such actions as agent on its behalf and to exercise such powers as are delegated to the
Agent or such Managing Agent by the terms of this Agreement and the other Transaction Documents
Page 36
together with such powers as are reasonably incidental thereto. Neither the Agent nor the
Managing Agents shall have any duties or responsibilities, except those expressly set forth herein
or in any other Transaction Document, or any fiduciary relationship with any Purchaser, and no
implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of
the Agent or the Managing Agents shall be read into this Agreement or any other Transaction
Document or otherwise exist for the Agent or the Managing Agents. In performing their functions and
duties hereunder and under the other Transaction Documents, (i) the Agent shall act solely as agent
for the Purchasers, (ii) each Managing Agent shall act solely as managing agent for the Conduit
Purchasers and Committed Purchasers in its Purchase Group, and (iii) neither the Agent nor any
Managing Agent shall be deemed to have assumed any obligation or relationship of trust or agency
with or for any Seller Party or any of such Seller Party’s successors or assigns. Neither the
Agent nor any Managing Agent shall be required to take any action that exposes the Agent or such
Managing Agent to personal liability or that is contrary to this Agreement, any other Transaction
Document or applicable law. The appointment and authority of the Agent and the Managing Agents
hereunder shall terminate upon the indefeasible payment in full of all Aggregate Unpaids. Each
Purchaser hereby authorizes the Agent to file each of the Uniform Commercial Code financing
statements on behalf of such Purchaser (the terms of which shall be binding on such Purchaser).
Section 11.2
Delegation of Duties. The Agent and the Managing Agents may execute any
of their respective duties under this Agreement and each other Transaction Document by or through
agents or attorneys in fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. Neither the Agent nor any Managing Agent shall be responsible for the
negligence or misconduct of any agents or attorneys in fact selected and maintained by it with
reasonable care.
Section 11.3
Exculpatory Provisions. None of the Agent, the Managing Agents or any of
their respective directors, officers, agents or employees shall be (i) liable for any action
lawfully taken or omitted to be taken by it or them under or in connection with this Agreement or
any other Transaction Document (except for its, their or such Person’s own gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the Purchasers for any recitals,
statements, representations or warranties made by any Seller Party contained in this Agreement, any
other Transaction Document or any certificate, report, statement or other document referred to or
provided for in, or received under or in connection with, this Agreement, or any other Transaction
Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, or any other Transaction Document or any other document furnished in connection
herewith or therewith, or for any failure of any Seller Party to perform its obligations hereunder
or thereunder, or for the satisfaction of any condition specified in
Article VI, or for the
perfection, priority, condition, value or sufficiency of any collateral pledged in connection
herewith. Neither the Agent nor any Managing Agent shall be under any obligation to any Purchaser
to ascertain or to inquire as to the observance or performance of any of the agreements or
covenants contained in, or conditions of, this Agreement or any other Transaction Document, or to
inspect the properties, books or records of the Seller Parties. Neither the Agent nor any Managing
Agent shall be deemed to have knowledge of any Amortization Event or Potential Amortization Event
unless the Agent or such Managing
Page 37
Agent, as applicable, has received notice from Seller or a Purchaser. No Managing Agent shall
have any responsibility hereunder to any Purchaser other than the Purchasers in its Purchase Group.
(a) The Agent shall in all cases be entitled to rely, and shall be fully protected in relying,
upon any document or conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to Seller), independent accountants and other experts
selected by the Agent. The Agent shall in all cases be fully justified in failing or refusing to
take any action under this Agreement or any other Transaction Document unless it shall first
receive such advice or concurrence of the Managing Agents, the Required Committed Purchasers or all
of the Purchasers, as applicable, as it deems appropriate and it shall first be indemnified to its
satisfaction by the Purchasers, provided that unless and until the Agent shall have received such
advice, the Agent may take or refrain from taking any action, as the Agent shall deem advisable and
in the best interests of the Purchasers. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, in accordance with a request of the Managing Agents, the
Required Committed Purchasers or all of the Purchasers, as applicable, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the Purchasers.
(b) Each Managing Agent shall in all cases be entitled to rely, and shall be fully protected
in relying, upon any document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to Seller), independent accountants and other
experts selected by such Managing Agent. Each Managing Agent shall in all cases be fully justified
in failing or refusing to take any action under this Agreement or any other Transaction Document
unless it shall first receive such advice or concurrence or the Purchasers in its related Purchase
Group, as it deems appropriate and it shall first be indemnified to its satisfaction by such
Purchasers, provided that unless and until such Managing Agent shall have received such advice,
such Managing Agent may take or refrain from taking any action, as such Managing Agent shall deem
advisable and in the best interests of the Purchasers in its related Purchase Group. Each Managing
Agent shall in all cases be fully protected in acting, or in refraining from acting, in accordance
with a request of the Purchasers in its related Purchase Group, and such request and any action
taken or failure to act pursuant thereto shall be finding upon all such Purchasers.
Section 11.5
Non Reliance on Agents and Other Purchasers. Each Purchaser expressly
acknowledges that none of the Agent, the Managing Agents or any of their respective officers,
directors, employees, agents, attorneys in fact or affiliates has made any representations or
warranties to it and that no act by the Agent or any Managing Agent hereafter taken, including,
without limitation, any review of the affairs of any Seller Party, shall be deemed to constitute
any representation or warranty by the Agent or such Managing Agent. Each Purchaser represents and
warrants to the Agent and the Managing Agents that it has and will, independently and without
reliance upon the Agent, any Managing Agent or
Page 38
any other Purchaser and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, operations, property, prospects,
financial and other conditions and creditworthiness of Seller and made its own decision to enter
into this Agreement, the other Transaction Documents and all other documents related hereto or
thereto.
Section 11.6
Reimbursement and Indemnification. The Committed Purchasers agree to
reimburse and indemnify the Agent, and the Committed Purchasers in each Purchase Group agree to
reimburse the Managing Agent for such Purchase Group, and their officers, directors, employees,
representatives and agents ratably according to their (a) Pro Rata Shares (in the case of any
reimbursement any indemnity obligations owing to its Managing Agent) or (b) ratable shares of the
Purchase Limit (in the case of any reimbursement and indemnity obligations owing to the Agent), to
the extent not paid or reimbursed by the Seller Parties (i) for any amounts for which the Agent, in
its capacity as Agent, or any Managing Agent, acting in its capacity as a Managing Agent, is
entitled to reimbursement by the Seller Parties hereunder and (ii) for any other expenses incurred
by the Agent, in its capacity as Agent, or any Managing Agent, acting in its capacity as a Managing
Agent, and acting on behalf of its related Purchasers, in connection with the administration and
enforcement of this Agreement and the other Transaction Documents.
Section 11.7
Agents in their Individual Capacity. The Agent, each Managing Agent and
each of their respective Affiliates may make loans to, accept deposits from and generally engage in
any kind of business with Seller or any Affiliate of Seller as though it were not the Agent or a
Managing Agent hereunder. With respect to the acquisition of Purchaser Interests pursuant to this
Agreement, the Agent and each Managing Agent shall have the same rights and powers under this
Agreement in its individual capacity as any Purchaser and may exercise the same as though it were
not the Agent or a Managing Agent, and the terms “
Committed Purchaser,”
“
Purchaser,” “
Committed Purchasers” and “
Purchasers” shall include the
Agent and each Managing Agent in its individual capacity.
Section 11.8
Successor Agent. The Agent may, upon five (5) days’ prior notice to
Seller and the Purchasers, and the Agent will, upon the direction of all of the Purchasers (other
than the Agent, in its individual capacity) resign as Agent. Each Managing Agent may, upon five
(5) days’ prior notice to Seller, the Agent, the Purchasers in its Purchase Group, and each
Managing Agent will, upon the direction of all of the Purchasers in its Purchase Group (other than
the Managing Agent, in its individual capacity), resign as a Managing Agent. If the Agent shall
resign, then the Required Committed Purchasers during such five day period shall appoint from among
the Purchasers a successor Agent. If a Managing Agent shall resign, then the Required Committed
Purchasers in its Purchase Group shall appoint a successor managing agent during such five-day
period. If for any reason no successor Agent or Managing Agent is so appointed during such
five-day period, then effective upon the termination of such five-day period, the Purchasers shall
perform all of the duties of the Agent or the Purchasers in the applicable Purchase Group shall
perform all of the duties of such Managing Agent, as applicable, hereunder and under the other
Transaction Documents and Seller and the Servicer (as applicable) shall make all payments in
respect of the Aggregate Unpaids directly to the applicable Purchasers and for all purposes shall
deal directly with the Purchasers. After the effectiveness of any retiring
Page 39
Managing Agent’s or any Agent’s resignation hereunder as Managing Agent or Agent, the retiring
Managing Agent or Agent shall be discharged from its duties and obligations hereunder and under the
other Transaction Documents and the provisions of this Article XI and Article X
shall continue in effect for its benefit with respect to any actions taken or omitted to be taken
by it while it was Managing Agent or Agent under this Agreement and under the other Transaction
Documents.
(a) Seller and each Committed Purchaser hereby agree and consent to the complete or partial
assignment by each Conduit Purchaser of all or any portion of its rights under, interest in, title
to and obligations under this Agreement (i) to the Committed Purchasers pursuant to this Agreement
or pursuant to a Liquidity Agreement, (ii) to any other Purchaser, any Managing Agent or the Agent
or any of their respective Affiliates, (iii) to any other issuer of commercial paper notes or other
entity which obtains funds from such an issuer of commercial paper notes, which in either case is
sponsored or administered by the Managing Agent of such Conduit Purchaser’s Purchase Group or
administered by any Affiliate of such Managing Agent or (iv) to any other Person; provided that,
prior to the occurrence of an Amortization Event, such Conduit Purchaser may not make any such
assignment pursuant to this clause (iv) without the consent of the Seller (which consent shall not
be unreasonably withheld or delayed). Upon any such assignment, any such Conduit Purchaser shall
be released from its obligations so assigned. Further, Seller and each Committed Purchaser hereby
agree that any assignee of any Conduit Purchaser of this Agreement or all or any of the Purchaser
Interests of any Conduit Purchaser shall have all of the rights and benefits under this Agreement
as if the term “Conduit Purchaser” explicitly referred to such party, and no such
assignment shall in any way impair the rights and benefits of any Conduit Purchaser hereunder.
Neither Seller nor the Servicer shall have the right to assign its rights or obligations under this
Agreement.
(b) Any Committed Purchaser may at any time and from time to time assign to one or more
Persons (“Purchasing Committed Purchasers”) all or any part of its rights and obligations
under this Agreement pursuant to an assignment agreement, substantially in the form set forth in
Exhibit VII hereto (the “Assignment Agreement”) executed by such Purchasing
Committed Purchaser and such selling Committed Purchaser; provided that the Seller’s consent (which
consent shall not be unreasonably withheld or delayed) shall be required for any such assignment
unless: (i) such assignment is to any other Purchaser, any Managing Agent or the Agent or any of
their respective Affiliates, (iii) such assignment is to any issuer of commercial paper notes or
other entity which obtains funds from such an issuer of commercial paper notes, which in either
case is sponsored or administered by the Managing Agent of such Committed Purchaser’s Purchase
Group or administered by any Affiliate of such Managing Agent or (iv) an Amortization Event has
occurred. In addition, the consent of the Managing Agent for such Committed Purchaser’s Purchase
Group shall be required prior to the effectiveness of any such assignment. Each assignee of a
Committed Purchaser must (i) have a short-term debt rating of A-1 or better by
Page 40
Standard & Poor’s Ratings Group and P-1 by Xxxxx’x Investor Service, Inc. and (ii) agree to
deliver to the Agent, promptly following any request therefor by the Agent or any Conduit Purchaser
in its Purchase Group, an enforceability opinion in form and substance satisfactory to the Agent
and such Conduit Purchaser. Upon delivery of the executed Assignment Agreement to the Agent and
the related Managing Agent, such selling Committed Purchaser shall be released from its obligations
hereunder to the extent of such assignment. Thereafter the Purchasing Committed Purchaser shall
for all purposes be a Committed Purchaser party to this Agreement and shall have all the rights and
obligations of a Committed Purchaser under this Agreement to the same extent as if it were an
original party hereto and no further consent or action by Seller, the Purchasers, the related
Managing Agent or the Agent shall be required.
(c) Each of the Committed Purchasers agrees that in the event that it shall cease to have a
short-term debt rating of A-1 or better by Standard & Poor’s Ratings Group and P-1 by Xxxxx’x
Investor Service, Inc. (an “Affected Committed Purchaser”), such Affected Committed
Purchaser shall be obliged, at the request of any Conduit Purchaser in its Purchase Group or the
related Managing Agent, to assign all of its rights and obligations hereunder to (x) another
Committed Purchaser or (y) subject to Seller’s consent rights in paragraph (b) above, another
funding entity nominated by its Managing Agent and acceptable to such Conduit Purchaser, and
willing to participate in this Agreement until the date described in clause (i) of the definition
of Facility Termination Date in the place of such Affected Committed Purchaser; provided
that the Affected Committed Purchaser receives payment in full, pursuant to an Assignment
Agreement, of an amount equal to such Committed Purchaser’s share of the Aggregate Capital and
Yield owing to the Committed Purchasers and all accrued but unpaid fees and other costs and
expenses payable in respect of its share of the Purchaser Interests.
Section 12.2
Participations. Any Committed Purchaser may, in the ordinary course of
its business at any time sell to one or more Persons (each a “
Participant”) participating
interests in its share of the Purchaser Interests, its Commitment or any other interest of such
Committed Purchaser hereunder. Notwithstanding any such sale by a Committed Purchaser of a
participating interest to a Participant, such Committed Purchaser’s rights and obligations under
this Agreement shall remain unchanged, such Committed Purchaser shall remain solely responsible for
the performance of its obligations hereunder, and Seller, the Purchasers, the Managing Agents and
the Agent shall continue to deal solely and directly with such Committed Purchaser in connection
with such Committed Purchaser’s rights and obligations under this Agreement. Each Committed
Purchaser agrees that any agreement between such Committed Purchaser and any such Participant in
respect of such participating interest shall not restrict such Committed Purchaser’s right to agree
to any amendment, supplement, waiver or modification to this Agreement, except for any amendment,
supplement, waiver or modification described in
Section 13.1(b)(i).
Page 41
(a) No failure or delay on the part of any Seller Party, the Agent, any Managing Agent or any
Purchaser in exercising any power, right or remedy under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any
other further exercise thereof or the exercise of any other power, right or remedy. The rights and
remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by
law. Any waiver of this Agreement shall be effective only in the specific instance and for the
specific purpose for which given.
(b) No provision of this Agreement may be amended, supplemented, modified or waived except in
writing in accordance with the provisions of this Section 13.1(b). The Conduit Purchasers,
Managing Agents, Servicer, Seller and the Agent, at the direction of the Required Committed
Purchasers, may enter into written modifications or waivers of any provisions of this Agreement,
provided, however, that no such modification or waiver shall:
(i) without the consent of each affected Purchaser, (A) extend the date described in clause
(i) of the definition of Facility Termination Date or the date of any payment or deposit of
Collections by Seller or the Servicer, (B) reduce the rate or extend the time of payment of Yield
(or any component of Yield), (C) reduce any fee payable to any Managing Agent for the benefit of
the Purchasers, (D) except pursuant to Article XII hereof, change the amount of the Capital
of any Purchaser, any Committed Purchaser’s Pro Rata Share or any Committed Purchaser’s Commitment,
(E) amend, modify or waive any provision of the definition of Required Committed Purchasers or this
Section 13.1(b), (F) consent to or permit the assignment or transfer by Seller of any of
its rights and obligations under this Agreement, (G) change the definition of “Delinquency
Ratio,” “Dilution Ratio,” “Dilution Reserve,” “Eligible Receivable,”
“Loss Reserve,” “Loss-to-Liquidation Ratio,” or “Yield and Servicing Fee
Reserve” or (H) amend or modify any defined term (or any defined term used directly or
indirectly in such defined term) used in clauses (A) through (G) above in a manner that would
circumvent the intention of the restrictions set forth in such clauses; or
(ii) without the written consent of any then Agent or Managing Agents, amend, modify or waive
any provision of this Agreement if the effect thereof is to affect the rights or duties of such
Agent or Managing Agent.
Notwithstanding the foregoing, without the consent of the Committed Purchasers, but with the
consent of Seller and the related Managing Agent, the Agent may amend this Agreement solely to add
additional Persons as Committed Purchasers hereunder. Any modification or waiver made in
accordance with this Section 13.1 shall apply to each of the Purchasers equally and shall
be binding upon Seller, the Servicer, the Purchasers, the Managing Agents and the Agent.
Section 13.2
Notices. Except as provided in this
Section 13.2, all
communications and notices provided for hereunder shall be in writing (including bank wire,
telecopy or electronic facsimile transmission, electronic mail or similar writing) and shall be
given to the other parties hereto at their respective addresses, telecopy numbers or email
Page 42
addresses set forth on the signature pages hereof or at such other address, telecopy number or
email addresses as such Person may hereafter specify for the purpose of notice to each of the other
parties hereto. Each such notice or other communication shall be effective (i) if given by
telecopy or email, upon the receipt thereof, (ii) if given by mail, three (3) Business Days after
the time such communication is deposited in the mail with first class postage prepaid or (iii) if
given by any other means, when received at the address specified in this Section 13.2.
Seller hereby authorizes the Agent and each Managing Agent to effect purchases and each Managing
Agent to make Tranche Period and Discount Rate selections based on telephonic notices made by any
Person whom the Agent or such Managing Agent in good faith believes to be acting on behalf of
Seller. Seller agrees to deliver promptly to the Agent and each Managing Agent a written
confirmation of each telephonic notice signed by an authorized officer of Seller; provided,
however, the absence of such confirmation shall not affect the validity of such notice. If
the written confirmation differs from the action taken by the Agent or any Managing Agent, the
records of the Agent or such Managing Agent shall govern absent manifest error.
Section 13.3
Ratable Payments. If any Purchaser, whether by setoff or otherwise, has
payment made to it with respect to any portion of the Aggregate Unpaids owing to such Purchaser
(other than payments received pursuant to
Section 10.3 or
10.4) in a greater
proportion than that received by any other Purchaser entitled to receive a ratable share of such
Aggregate Unpaids, such Purchaser agrees, promptly upon demand, to purchase for cash without
recourse or warranty a portion of such Aggregate Unpaids held by the other Purchasers so that after
such purchase each Purchaser will hold its ratable proportion of such Aggregate Unpaids; provided
that if all or any portion of such excess amount is thereafter recovered from such Purchaser, such
purchase shall be rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(a) Seller agrees that from time to time, at its expense, it will, or will cause the Servicer
to, promptly execute and deliver all instruments and documents, and take all actions, that may be
necessary or desirable, or that any Managing Agent may reasonably request, to perfect, protect or
more fully evidence the Purchaser Interests, or to enable the Agent, the Managing Agents or the
Purchasers to exercise and enforce their rights and remedies hereunder. At any time after the
occurrence of an Amortization Event, the Agent may, or the Agent may direct Seller or the Servicer
to, notify the Obligors of Receivables, at Seller’s expense, of the ownership or security interests
of the Purchasers under this Agreement and may also direct that payments of all amounts due or that
become due under any or all Receivables be made directly to the Agent or its designee. Seller or
the Servicer (as applicable) shall, at any Purchaser’s request, withhold the identity of such
Purchaser in any such notification.
(b) If any Seller Party fails to perform any of its material obligations hereunder, the Agent,
any Managing Agent or any Purchaser may (but shall not be required to) perform, or cause
performance of, such obligations, and the Agent’s, such Managing Agent’s or such Purchaser’s
out-of-pocket costs and expenses incurred in connection therewith shall be payable by Seller as
provided in Section 10.4. Each Seller
Page 43
Party irrevocably authorizes the Agent at any time and from time to time in the sole
discretion of the Agent, and appoints the Agent as its attorney-in-fact, to act on behalf of such
Seller Party (i) to file financing statements necessary or desirable in the Agent’s sole discretion
to perfect and to maintain the perfection and priority of the interest of the Purchasers in the
Receivables and (ii) to file a carbon, photographic or other reproduction of this Agreement or any
financing statement with respect to the Receivables as a financing statement in such offices as the
Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection
and priority of the interests of the Purchasers in the Receivables. This appointment is coupled
with an interest and is irrevocable.
(a) Each of the Agent, the Managing Agents and the Purchasers agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal
counsel and other advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory authority, (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to any assignee of or participant in, or any prospective assignee of or participant
in, any of its rights or obligations under this Agreement, (g) by the Agent, any Managing Agent or
any Purchaser to any rating agency, Commercial Paper dealer, provider of credit enhancement or
liquidity to any Conduit Purchaser or any Person providing financing to, or holding equity
interests in, any Conduit Purchaser, and to any officers, directors, employees, outside accountants
and attorneys of any of the foregoing, and in each case, to the extent that such Person reasonably
requires such information, (h) with the consent of the Seller or Servicer, or (i) to the extent
such Information (A) becomes publicly available other than as a result of a breach of this Section
or (B) becomes available to the Agent, any Managing Agent or any Purchaser on a nonconfidential
basis from a source other than a Seller Party or one of its Affiliates. For the purposes of this
Section, “Information” means all information received from a Seller Party relating to any
Seller Party or its business, other than any such information that is available to the Agent, any
Managing Agent or any Purchaser on a nonconfidential basis prior to disclosure by such Seller
Party; provided that, in the case of information received from a Seller Party after the
date hereof, such information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information. Each Person recognizes its responsibility for compliance with
United States federal securities laws, including xxxxxxx xxxxxxx, in connection herewith.
(b) Each Seller Party and each Purchaser shall maintain and shall cause each of its employees
and officers to maintain the confidentiality of the Fee
Page 44
Letter and the other confidential or proprietary information with respect to the Agent, each
Managing Agent, each Purchaser and their respective businesses obtained by it or them in connection
with the structuring, negotiating and execution of the transactions contemplated herein, except
that information may be disclosed (a) to such Person’s and its Affiliates’ directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, or (d) to the extent such information (A) becomes publicly
available other than as a result of a breach of this Section or (B) becomes available to any Seller
Party or Purchaser on a nonconfidential basis from a source other than the Agent, a Managing Agent
or a Purchaser or one of its Affiliates. If, in the reasonable judgment of any Seller Party, this
Agreement or any Transaction Document shall be required to be publicly filed with the SEC under any
applicable law, such Seller Party, or HBI on its behalf, may file any such document as required
under applicable law. Any Person required to maintain the confidentiality of information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such information as
such Person would accord to its own confidential information. Anything herein to the contrary
notwithstanding, each Seller Party, each Purchaser, the Agent, each Managing Agent, each
Indemnified Party and any successor or assign of any of the foregoing (and each employee,
representative or other agent of any of the foregoing) may disclose to any and all Persons, without
limitation of any kind, the “tax treatment” and “tax structure” (in each case, within the meaning
of Treasury Regulation Section 1.6011-4) of the transactions contemplated herein and all materials
of any kind (including opinions or other tax analyses) that are or have been provided to any of the
foregoing relating to such tax treatment or tax structure, and it is hereby confirmed that each of
the foregoing have been so authorized since the commencement of discussions regarding the
transactions.
Section 13.6
Bankruptcy Petition. Seller, the Servicer, the Agent, each Managing
Agent and each Purchaser hereby covenants and agrees that, prior to the date that is one (1) year
and one (1) day after the payment in full of all outstanding senior indebtedness of any Conduit
Purchaser, it will not institute against, or join any other Person in instituting against, such
Conduit Purchaser any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United States or any state of the
United States.
Section 13.7
Limited Recourse. Notwithstanding anything to the contrary contained
herein, the obligations of any Conduit Purchaser under this Agreement are solely the obligations of
such Conduit Purchaser and, in the case of obligations of such Conduit Purchaser other than
Commercial Paper, shall be payable at such time as funds are received by or are available to such
Conduit Purchaser in excess of funds necessary to pay in full all outstanding Commercial Paper of
such Conduit Purchaser and, to the extent funds are not available to pay such obligations, the
claims relating thereto shall not constitute a claim against such Conduit Purchaser but shall
continue to accrue. Each party hereto agrees that the payment of any claim (as defined in Xxxxxxx
000 xx Xxxxx 00, Xxxxxx Xxxxxx Code
Page 45
(Bankruptcy)) of any such party against a Conduit Purchaser shall be subordinated to the
payment in full of all Commercial Paper of such Conduit Purchaser.
No recourse under any obligation, covenant or agreement of any Conduit Purchaser contained in
this Agreement shall be had against any member, manager, officer, director, employee or agent of
such Conduit Purchaser, the Agent, the Managing Agents, the Manager or any of their Affiliates
(solely by virtue of such capacity) by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and
understood that this Agreement is solely an obligation of such Conduit Purchaser individually, and
that no personal liability whatever shall attach to or be incurred by any incorporator,
stockholder, officer, director, member, employee or agent of such Conduit Purchaser, the Agent, the
Managing Agents, the Manager or any of their Affiliates (solely by virtue of such capacity) or any
of them under or by reason of any of the obligations, covenants or agreements of such Conduit
Purchaser contained in this Agreement, or implied therefrom, and that any and all personal
liability for breaches by such Conduit Purchaser of any of such obligations, covenants or
agreements, either at common law or at equity, or by statute, rule or regulation, of every such
member, manager, officer, director, employee or agent is hereby expressly waived as a condition of
and in consideration for the execution of this Agreement; provided that the foregoing shall
not relieve any such Person from any liability it might otherwise have as a result of fraudulent
actions taken or omissions made by them.
The obligations of each Seller Party under this Agreement are solely the corporate obligations
of such Seller Party. No recourse under any obligation, covenant or agreement of any Seller Party
contained in this Agreement shall be had against any member, manager, officer, director, employee
or agent of such Seller Party or any of their Affiliates (solely by virtue of such capacity) by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement is solely an obligation of
such Seller Party individually, and that no personal liability whatever shall attach to or be
incurred by any incorporator, stockholder, officer, director, member, employee or agent of such
Seller Party or any of their Affiliates (solely by virtue of such capacity) or any of them under or
by reason of any of the obligations, covenants or agreements of such Seller Party contained in this
Agreement, or implied therefrom, and that any and all personal liability for breaches by such
Seller Party of any of such obligations, covenants or agreements, either at common law or at
equity, or by statute, rule or regulation, of every such member, manager, officer, director,
employee or agent is hereby expressly waived as a condition of and in consideration for the
execution of this Agreement; provided that the foregoing shall not relieve any such Person from any
liability it might otherwise have as a result of fraudulent actions taken or omissions made by
them.
Section 13.8
Limitation of Liability. Except with respect to any claim arising out of
the willful misconduct or gross negligence of any Conduit Purchaser, any Managing Agent, the Agent,
any Seller Party or any Committed Purchaser, no claim may be made by any Seller Party or any other
Person against any Conduit Purchaser, any Managing Agent, the Agent, any Seller Party or any
Committed Purchaser or their respective Affiliates, directors, officers, employees, attorneys or
agents for any special, indirect, consequential or
Page 46
punitive damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this Agreement, or any act,
omission or event occurring in connection therewith; and each party hereto hereby waives, releases,
and agrees not to xxx upon any claim for any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor.
Section 13.9
CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
NEW YORK.
Section 13.10
CONSENT TO JURISDICTION. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS
TO THE NON EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
NEW YORK STATE COURT SITTING IN
NEW YORK,
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT AND EACH PARTY HERETO HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS
TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS
AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY PARTY HERETO TO BRING
PROCEEDINGS AGAINST ANY OTHER PARTY HERETO IN THE COURTS OF ANY OTHER JURISDICTION.
Section 13.11
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY
DOCUMENT EXECUTED BY ANY PARTY PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER
OR THEREUNDER.
(a) This Agreement and each other Transaction Document contain the final and complete
integration of all prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire agreement among the parties hereto with respect to the
subject matter hereof superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns (including any trustee in bankruptcy). 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 terminated in accordance
with its terms; provided, however, that the rights and remedies with respect to (i)
any breach of any representation and warranty made by any
Page 47
Seller Party pursuant to Article V, (ii) the indemnification and payment provisions of
Article X, and Sections 13.5, 13.6, 13.7 and 13.8 shall be
continuing and shall survive any termination of this Agreement.
Section 13.13
Counterparts; Severability; Section References. 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. Any provisions of this Agreement which are
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Unless otherwise expressly
indicated, all references herein to “Article,” “Section,” “Schedule” or “Exhibit” shall mean
articles and sections of, and schedules and exhibits to, this Agreement.
(a) JPMorgan Roles. Each of the Committed Purchasers acknowledges that JPMorgan acts,
or may in the future act, (i) as Agent for the Purchasers, (ii) as managing agent for one or more
Conduit Purchasers, (iii) as issuing and paying agent for the Commercial Paper issued by one or
more Conduit Purchasers, (iv) to provide credit or liquidity enhancement for the timely payment for
the Commercial Paper of one or more Conduit Purchases and (v) to provide other services from time
to time for any of the Purchasers (collectively, the “JPMorgan Roles”). Without limiting
the generality of this Section 13.14, each Committed Purchaser hereby acknowledges and
consents to any and all JPMorgan Roles and agrees that in connection with any JPMorgan Role,
JPMorgan may take, or refrain from taking, any action that it, in its discretion, deems
appropriate, including, without limitation, in its role as Agent hereunder.
(b) Managing Agent Institution Roles. Each of the Committed Purchasers acknowledges
that each Person that serves as a Managing Agent hereunder (a “Managing Agent Institution”)
acts, or may in the future act, (i) as Managing Agent for one or more Conduit Purchasers, (ii) as
issuing and paying agent for each such Conduit Purchaser’s Commercial Paper, (iii) to provide
credit or liquidity enhancement for the timely payment for each such Conduit Purchaser’s Commercial
Paper and (iv) to provide other services from time to time for some or all of the Conduit
Purchasers (collectively, the “Managing Agent’s Institution Roles”). Without limiting the
generality of this Section 13.14(b), each Committed Purchaser hereby acknowledges and
consents to any and all Managing Agent Institution Roles and agrees that in connection with any
Managing Agent Institution Role, the applicable Managing Agent Institution may take, or refrain
from taking, any action that it, in its discretion, deems appropriate, including, without
limitation, in its role as administrative agent for the related Conduit Purchaser.
Page 48
(a) It is the intention of the parties hereto that each purchase hereunder shall constitute
and be treated as an absolute and irrevocable sale, which purchase shall provide the applicable
Purchaser with the full benefits of ownership of the applicable Purchaser Interest. Except as
specifically provided in this Agreement, each sale of a Purchaser Interest hereunder is made
without recourse to Seller; provided, however, that (i) Seller shall be liable to
each Purchaser, each Managing Agent and the Agent for all representations, warranties, covenants
and indemnities made by Seller pursuant to the terms of this Agreement, and (ii) such sale does not
constitute and is not intended to result in an assumption by any Purchaser, any Managing Agent or
the Agent or any assignee thereof of any obligation of Seller or Originator or any other person
arising in connection with the Receivables, the Related Security, or the related Contracts, or any
other obligations of Seller or Originator.
(b) In addition to any ownership interest which the Agent and the Purchasers may from time to
time acquire pursuant hereto, Seller hereby grants to the Agent for the ratable benefit of the
Purchasers and the other Indemnified Parties a valid and perfected security interest in all of
Seller’s right, title and interest in, to and under the following assets, now existing or hereafter
arising: (i) all Receivables, (ii) the Collections, (iii) each Lock-Box, (iv) each Collection
Account, (v) all Related Security, (vi) all other rights and payments relating to such Receivables,
(vii) all of Seller’s rights, title, and interest in, to and under the Sale Agreements (including,
without limitation, (a) all rights to indemnification arising thereunder and (b) all UCC financing
statements filed pursuant thereto), (viii) all proceeds of any of the foregoing, and (ix) all other
assets in which the Agent has acquired, may hereafter acquire and/or purports to have acquired an
interest hereunder to secure the prompt and complete payment of the Aggregate Unpaids, which
security interest shall be prior to all other Adverse Claims thereto. The Agent and the Purchasers
shall have, in addition to the rights and remedies that they may have under this Agreement, all
other rights and remedies provided to a secured creditor under the UCC and other applicable law,
which rights and remedies shall be cumulative. The Seller hereby authorizes the Agent, within the
meaning of 9-509 of any applicable enactment of the UCC, as secured party for the benefit of itself
and of the Indemnified Parties, to file, without the signature of the Seller or any Transferor, as
debtors, the UCC financing statements contemplated herein and under the Receivables Sale Agreement.
(c) In connection with Seller’s transfer of its right, title and interest in, to and under the
Receivables Sale Agreement, the Seller agrees that the Agent shall have the right to enforce the
Seller’s rights and remedies under the Receivables Sale Agreement, to receive all amounts payable
thereunder or in connection therewith, to consent to amendments, modifications or waivers thereof,
and to direct, instruct or request any action thereunder, but in each case without any obligation
on the part of the Agent, any Managing Agent or any Purchaser or any of its or their respective
Affiliates to perform any of the obligations of the Seller under the Receivables Sale Agreement.
To the extent that the Seller enforces the Seller’s rights and remedies under the Receivables Sale
Agreement, from and after the occurrence of an Amortization Event, and during the continuance
thereof, the Agent shall have the exclusive right to direct such enforcement by the Seller.
Page 49
(d) If, notwithstanding the intention of the parties expressed above, any sale or transfer by
Seller hereunder shall be characterized as a secured loan and not a sale or such sale shall for any
reason be ineffective or unenforceable (any of the foregoing being a “Recharacterization”),
then this Agreement shall be deemed to constitute a security agreement under the UCC and other
applicable law. In the case of any Recharacterization, the Seller represents and warrants that
each remittance of Collections to the Agent or the Purchasers hereunder will have been (i) in
payment of a debt incurred in the ordinary course of its business or financial affairs and (ii)
made in the ordinary course of its business or financial affairs.
Section 13.16
USA PATRIOT Act. Each Committed Purchaser that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “
Act”) hereby notifies the Seller Parties that pursuant to the requirements of
the Act, it is required to obtain, verify and record information that identifies each Seller Party,
which information includes the name and address of the each Seller Party and other information that
will allow such Committed Purchaser to identify each Seller Party in accordance with the
Act.
Page 50
|
|
|
|
|
|
HBI RECEIVABLES LLC, as Seller
|
|
|
By: |
/s/ Xxxxxxx X. Xxxx
|
|
|
|
Name: |
Xxxxxxx X. Xxxx |
|
|
|
Title: |
President and Chief Executive Officer
|
|
|
|
Address: |
0000 Xxxx Xxxxx Xxxx Xxxx Xxxxxxx Xxxxx, XX 00000
|
|
|
Attention: |
Xxxx X. Xxxxxx
|
|
|
Fax: |
(000) 000-0000
|
|
|
Telephone: |
(000) 000-0000 |
|
|
|
HANESBRANDS INC., as Servicer
|
|
|
By: |
/s/ Xxxxxxx X. Xxxx
|
|
|
|
Name: |
Xxxxxxx X. Xxxx |
|
|
|
Title: |
Treasurer
|
|
|
|
Address: |
0000 Xxxx Xxxxx Xxxx Xxxx Xxxxxxx Xxxxx, XX 00000
|
|
|
Attention: |
Xxxx X. Xxxxxx
|
|
|
Fax: |
(000) 000-0000
|
|
|
Telephone: |
(000) 000-0000 |
|
|
|
|
|
|
|
|
FALCON ASSET SECURITIZATION COMPANY
LLC, as a Conduit Purchaser
|
|
|
By: |
JPMorgan Chase Bank, N.A., its attorney-in-Fact
|
|
|
|
|
|
|
By: |
/s/ Xxxx X. Xxxxxx
|
|
|
|
Name: |
Xxxx X. Xxxxxx |
|
|
|
Title: |
Vice President
|
|
|
Address: |
c/o JPMorgan Chase Bank, N.A., as Agent
Asset Backed Securities Conduit Purchaser
Group
00 X. Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
|
|
|
Fax: |
(000) 000-0000 |
|
|
|
|
JPMORGAN CHASE BANK, N.A., as a
Committed Purchaser, a Managing Agent and as
Agent
|
|
|
|
By: |
/s/ Xxxx X. Xxxxxx
|
|
|
|
Name: |
Xxxx X. Xxxxxx |
|
|
|
Title: |
Vice President
|
|
|
Address: |
JPMorgan Chase Bank, N.A.
Asset Backed Securities Conduit Purchaser
Group
00 X. Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
|
|
|
Fax: |
(000) 000-0000 |
|
|
|
|
|
|
|
|
BRYANT PARK FUNDING LLC, as a Conduit
Purchaser
|
|
|
|
By: |
/s/ Xxxxx X. XxXxxxxxx
|
|
|
|
Name: |
Xxxxx X. XxXxxxxxx |
|
|
|
Title: |
Vice President
|
|
|
|
Address: |
Bryant Park Funding LLC
c/o Global Securitization Services, LLC
|
|
|
|
Attn: |
Xxxx Xxxx
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
|
|
|
|
Fax: |
000-000-0000 |
|
|
|
Tel: |
000-000-0000 |
|
|
|
|
HSBC SECURITIES (USA) Inc., as a Managing
Agent
|
|
|
|
By: |
/s/ Xxxxx X. Xxxx
|
|
|
|
Name: |
Xxxxx X. Xxxx |
|
|
|
Title: |
Director
|
|
|
|
Address: |
HSBC Securities (USA) Inc. |
|
|
|
Attn: |
Xxxxx Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
|
|
|
|
Tel: |
000-000-0000 |
|
|
|
Fax: |
000-000-0000 |
|
|
|
|
HSBC BANK USA, NATIONAL ASSOCIATION,
as a Committed Purchaser
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxx
|
|
|
|
Name: |
Xxxxxx X. Xxxxx |
|
|
|
Title: |
Managing Director
|
|
|
|
Address: |
HSBC Bank USA, National Association |
|
|
Attn: |
Xxx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
|
|
|
|
Tel: |
000-000-0000 |
|
|
|
Fax: |
000-000-0000 |
|
|
EXHIBIT I
As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Accrual Period” means each calendar month, provided that the initial Accrual Period
hereunder means the period from (and including) the date of the initial Incremental Purchase
hereunder to (and including) the last day of the calendar month thereafter.
“Adverse Claim” means a lien, security interest, charge or encumbrance, or other right
or claim in, of or on any Person’s assets or properties in favor of any other Person.
“Affected Committed Purchaser” has the meaning specified in Section 12.1(c).
“Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person or any
Subsidiary of such Person. A Person shall be deemed to control another Person if the controlling
Person owns 15.0% or more of any class of voting securities of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the management or policies of
the controlled Person, whether through ownership of stock, by contract or otherwise.
“Agent” has the meaning set forth in the preamble to this Agreement.
“Aggregate Capital” means, on any date of determination, the aggregate amount of
Capital of all Purchaser Interests outstanding on such date.
“Aggregate Reduction” has the meaning specified in Section 1.3.
“Aggregate Reserves” means, on any date of determination, the sum of the Loss Reserve,
the Dilution Reserve and the Yield and Servicing Fee Reserve.
“Aggregate Unpaids” means, at any time, an amount equal to the sum of all Aggregate
Capital and all unpaid Obligations (whether due or accrued) at such time.
“Amortization Date” means the earliest to occur of (i) the day on which any of the
conditions precedent set forth in Section 6.2 are not satisfied, (ii) the Business Day
immediately prior to the occurrence of an Amortization Event set forth in Section
9.1(d)(ii), (iii) the Business Day specified in a written notice from the Agent following the
occurrence of any other Amortization Event, (iv) the date which is 30 days after the Agent’s
receipt of written notice from Seller that it wishes to terminate the facility evidenced by this
Exh. I-1
Agreement, (v) the date described in clause (i) of the definition of Facility Termination Date
and (vi) the Termination Date under and as defined in the Receivables Sale Agreement.
“Amortization Event” has the meaning specified in Article IX.
“Applicable Margin” has the meaning set forth in the Fee Letter.
“Assignment Agreement” has the meaning set forth in Section 12.1(b).
“Authorized Officer” means, with respect to any Person, its president, chief executive
officer, treasurer, assistant treasurer, chief financial officer, or controller.
“Broken Funding Costs” means for any Purchaser Interest which: (i) has its Capital
reduced without compliance by Seller with the notice requirements hereunder, (ii) does not become
subject to an Aggregate Reduction following the delivery of any Reduction Notice, (iii) is assigned
to the Committed Purchasers pursuant to a Liquidity Agreement or (iv) otherwise is terminated prior
to the date on which it was originally scheduled to end; an amount equal to the excess, if any, of
(A) the Yield that would have accrued during the remainder of the Tranche Periods or the tranche
periods for Commercial Paper determined by the applicable Managing Agent to relate to such
Purchaser Interest subsequent to the date of such reduction, assignment or termination (or in
respect of clause (ii) above, the date such Aggregate Reduction was designated to occur pursuant to
the Reduction Notice) of the Capital of such Purchaser Interest if such reduction, assignment or
termination had not occurred or such Reduction Notice had not been delivered, over (B) the sum of
(x) to the extent all or a portion of such Capital is allocated to another Purchaser Interest, the
amount of Yield actually accrued during the remainder of such period on such Capital for the new
Purchaser Interest, and (y) to the extent such Capital is not allocated to another Purchaser
Interest, the income, if any, actually received during the remainder of such period by the holder
of such Purchaser Interest from investing the portion of such Capital not so allocated. In the
event that the amount referred to in clause (B) exceeds the amount referred to in clause (A), the
relevant Purchaser or Purchasers agree to pay to Seller the amount of such excess. All Broken
Funding Costs shall be due and payable hereunder upon demand.
“
Business Day” means any day on which banks are not authorized or required to close in
New York,
New York or Chicago, Illinois and The Depository Trust Company of
New York is open for
business, and, if the applicable Business Day relates to any computation or payment to be made with
respect to the LIBO Rate, any day on which dealings in dollar deposits are carried on in the London
interbank market.
“Calendar Month” means each four or five week period as set forth on Schedule
D hereto.
“Capital” of any Purchaser Interest means, at any time, (A) the Purchase Price of such
Purchaser Interest, minus (B) the sum of the aggregate amount of Collections and other payments
received by the Managing Agents which in each case are applied to reduce such Capital in accordance
with the terms and conditions of this Agreement; provided that such Capital shall be
restored (in accordance with Section 2.5) in the amount of any Collections
Exh. I-2
or other payments so received and applied if at any time the distribution of such Collections
or payments are rescinded, returned or refunded for any reason.
“Capital Securities” means, with respect to any Person, all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) of such
Person’s capital, whether now outstanding or issued after the date hereof.
“Change of Control” means:
(i) any person or group (within the meaning of Sections 13(d) and 14(d) under the
Exchange Act) shall become the ultimate “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of Capital Securities representing
more than 35% of the Capital Securities of HBI on a fully diluted basis;
(ii) during any period of 24 consecutive months, individuals who at the beginning of
such period constituted the Board of Directors of HBI (together with any new directors
whose election to such Board or whose nomination for election by the stockholders of HBI
was approved by a vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the Board of
Directors of HBI then in office;
(iii) the occurrence of any “Change of Control” (or similar term) under (and as
defined in) any First Lien Loan Document, Second Lien Loan Document or Senior Note
Document; or
(iv) Originator shall for any reason cease to own and control all of the outstanding
equity interests of Seller.
“Charged-Off Receivable” means a Receivable: (i) as to which, to the knowledge of the
Originator, the Obligor thereof has taken any action, or suffered any event to occur, of the type
described in Section 9.1(d) (as if references to Seller Party therein refer to such
Obligor); (ii) as to which the Obligor thereof, if a natural person, is deceased, (iii) which,
consistent with the Credit and Collection Policy, would be written off Seller’s books as
uncollectible or (iv) which has been identified by Seller as uncollectible.
“Collection Account” means each concentration account, depositary account, lock-box
account or similar account in which any Collections are collected or deposited.
“Collection Account Agreement” means an agreement substantially in the form of
Exhibit VI among Originator, Seller, the Agent and a Collection Bank.
“Collection Bank” means, at any time, any of the banks holding one or more Collection
Accounts.
“Collection Notice” means a notice, in substantially the form of Exhibit A to
Exhibit VI, from the Agent to a Collection Bank.
Exh. I-3
“Collections” means, with respect to any Receivable, all cash collections and other
cash proceeds in respect of such Receivable, including, without limitation, all yield, principal,
Finance Charges, recoveries or other related amounts accruing in respect thereof and all cash
proceeds of Related Security with respect to such Receivable and any Deemed Collections.
“Commercial Paper” means promissory notes of a Conduit Purchaser issued by such
Conduit Purchaser in the commercial paper market.
“Commitment” means, for each Committed Purchaser, the commitment of such Committed
Purchaser to purchase Purchaser Interests from Seller, in an amount not to exceed in the aggregate,
the amount set forth below such Committed Purchaser’s name on Schedule A to this Agreement, as such
amount may be modified in accordance with the terms hereof.
“Committed Purchasers” has the meaning set forth in the preamble in this Agreement.
“Concentration Limit” means, for any Obligor and its Affiliates, at any time, the
amount equal to the product of (a) either (i) 4.00% or (ii) such other higher percentages (each, a
“Special Concentration Percentage”) for such Obligors and its Affiliates as are set forth
on Schedule C, which Special Concentration Percentage is subject to reduction or
cancellation (1) by the Agent with respect to any Obligor, or (2) by the Agent, upon written demand
by any Managing Agent, with respect to any Obligor whose short term debt ratings are withdrawn or
downgraded by S&P or Xxxxx’x, in either case of (1) or (2), upon five (5) Business Days’ prior
notice to Seller, the other Managing Agents, the Agent and the Servicer and (b) the aggregate
Outstanding Balance of all Eligible Receivables at such time.
“Conduit Purchaser” has the meaning set forth in the preamble to this Agreement.
“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by
which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating agreement, take or pay
contract or application for a letter of credit.
“Contract” means, with respect to any Receivable, any and all instruments, agreements,
invoices or other writings pursuant to which such Receivable arises or which evidences such
Receivable; provided that the term “Contract” shall not include any agreement or documents
between an Obligor and Originator or delivered to an Obligor which relate to cooperative
advertising arrangements, discount arrangements or requirements of merchants of Originator’s
product to the extent such agreements or documents do not evidence or give rise to any Receivable
and do not govern the origination, servicing or enforcement of any Receivable.
Exh. I-4
“Controlled Group” means all members of a controlled group of corporations and all
members of a controlled group of trades or businesses (whether or not incorporated) under common
control which, together with Servicer, are treated as a single employer under Section 414(b) or
414(c) of the Code or Section 4001 of ERISA.
“CP Costs” means, for each day, the sum of (i) discount or yield accrued on Pooled
Commercial Paper of any Conduit Purchaser administered by JPMorgan on such day, plus (ii) any and
all accrued commissions in respect of placement agents and Commercial Paper dealers, and issuing
and paying agent fees incurred, in respect of such Pooled Commercial Paper for such day, plus (iii)
other costs associated with funding small or odd-lot amounts with respect to all receivable
purchase facilities which are funded by such Pooled Commercial Paper for such day, minus (iv) any
accrual of income net of expenses received on such day from investment of collections received
under all receivable purchase facilities funded substantially with such Pooled Commercial Paper,
minus (v) any payment received on such day net of expenses in respect of Broken Funding Costs
related to the prepayment of any Purchaser Interest of such Conduit Purchaser pursuant to the terms
of any receivable purchase facilities funded substantially with Pooled Commercial Paper. In
addition to the foregoing costs, if Seller shall request any Incremental Purchase during any period
of time determined by JPMorgan in its sole discretion to result in incrementally higher CP Costs
applicable to such Incremental Purchase, the Capital associated with any such Incremental Purchase
shall, during such period, be deemed to be funded by the applicable Conduit Purchaser in a special
pool (which may include capital associated with other receivable purchase facilities) for purposes
of determining such additional CP Costs applicable only to such special pool and charged each day
during such period against such Capital.
“CP Rate” means:
(a) with respect to any Conduit Purchaser for which JPMorgan is the Managing Agent, for any
Accrual Period for any Purchaser Interest, to the extent such Conduit Purchaser funds such
Purchaser Interest by issuing Commercial Paper, a per annum rate equal to a fraction, expressed as
a percentage, the numerator of which shall be equal to the sum of the CP Costs, determined on a pro
rata basis, based upon the percentage share that the dollar amount of such Purchaser Interest
represents in relation to all assets or investments associated with any assets held by such Conduit
Purchaser and funded substantially with Pooled Commercial Paper, for each day during such Accrual
Period (or portion thereof), and the denominator of which is the weighted daily average Capital of
such Purchaser Interest during such Accrual Period;
(b) with respect to any Conduit Purchaser for which HSBC is the Managing Agent, for any
Accrual Period for any Purchaser Interest, to the extent such Conduit Purchaser funds such
Purchaser Interest by issuing Commercial Paper, a per annum rate equal to the weighted average of
the rates payable by such Conduit Purchaser in respect of its Commercial Paper outstanding during
such Accrual Period that is allocated, in whole or in part, to fund or maintain such Purchaser
Interest during such Accrual Period, converted (as necessary) to an annual yield equivalent rate
calculated on the basis of a 360-day year, which rates shall include issuing and paying agent fees
and any placement agent or commercial paper fees and commissions; and
Exh. I-5
(c) for any Accrual Period for any Purchaser Interest funded by a Conduit Purchaser that
becomes a party to this Agreement pursuant to an Assignment Agreement, to the extent such Conduit
Purchaser funds such Purchaser Interest by issuing Commercial Paper, the “CP Rate” set forth in
such Assignment Agreement;
provided, that at all times after the occurrence and during the continuance of an
Amortization Event, the CP Rate shall mean the Default Rate.
“Credit and Collection Policy” means the Originator’s and the Servicer’s credit and
collection policies and practices relating to Contracts and Receivables existing on the date hereof
and summarized in Exhibit VIII hereto, as modified from time to time in accordance with
this Agreement.
“Daily Report” means a report, in substantially the form of Exhibit XIII
hereto (appropriately completed), furnished by the Servicer to the Managing Agents and the Agent
pursuant to Section 8.5.
“Dating Receivable” means a Receivable for which the related due date was set by the
Originator prior to the origination of such Receivable.
“Deemed Collections” means the aggregate of all amounts Seller shall have been deemed
to have received as a Collection of a Receivable. Seller shall be deemed to have received a
Collection (but only to the extent of the reduction or cancellation identified below) of a
Receivable if at any time (i) the Outstanding Balance of any such Receivable is either (x) reduced
as a result of any defective or rejected goods, any discount, rebate or any adjustment or otherwise
(other than cash Collections on account of the Receivables) or (y) reduced or canceled as a result
of a setoff in respect of any claim by any Person (whether such claim arises out of the same or a
related transaction or an unrelated transaction) or (ii) any of the representations or warranties
regarding any Receivable in Article V are no longer true (in which case, Seller shall be
deemed to have received a Collection in an amount equal to the Outstanding Balance of such
Receivable).
“Defaulted Receivable” means a Receivable as to which any payment, or part thereof,
remains unpaid for more than 90 days from the original due date for such payment.
“Default Rate” means a rate per annum equal to 1.0% above the Prime Rate.
“Default Ratio” means, at any time, a percentage equal to (i) the sum of (a) the
aggregate Outstanding Balance of all Receivables that became Charged-Off Receivables during the
most recently ended Calendar Month that were less than 61 days past the original due date and (b)
the aggregate Outstanding Balance of all Receivables as to which (A) any payment, or part thereof,
remains unpaid for 61 days to 90 days past the original due date as of the last day of such
Calendar Month and (B) did not become Charged-Off Receivables prior to the day that was 61 days
past the original due date, divided by (ii) the aggregate Original Balance of all Receivables
generated by Originator during the Calendar Month ending three (3) Calendar Months prior to such
Calendar Month.
Exh. I-6
“Delinquency Ratio” means, at any time, a percentage equal to (i) the aggregate
Outstanding Balance of all Receivables that were Delinquent Receivables as of the last day of the
most recently ended Calendar Month divided by (ii) the aggregate Outstanding Balance of all
Receivables as of the last day of such Calendar Month.
“Delinquent Receivable” means a Receivable as to which any payment, or part thereof,
remains unpaid for more than 60 days from the original due date for such payment.
“Dilution Ratio” means, at any time, a percentage equal to (i) the aggregate amount of
Dilutions which occurred during the most recently ended Calendar Month, divided by (ii) the
aggregate Original Balance of all Receivables generated by Originator during either (A) the most
recently ended Calendar Month or (B) such other period of time as specified by any Managing Agent
upon three (3) Business Days’ prior written notice to the other parties hereto at any time within
two (2) months after the date on which the Managing Agents receive the results of any annual audit
report prepared at the request of any Managing Agent pursuant to Section 7.1(d),
provided, that no Managing Agent may specify any such other period of time unless such
other period of time is reasonably based upon and verified by the results of any such annual audit
report.
“Dilution Reserve” means, at any time, an amount equal to the Dilution Reserve
Percentage at such time multiplied by the Net Receivables Balance at such time.
“Dilution Reserve Floor” means 17.0%.
“Dilution Reserve Percentage” means, at any time, the greater of (i) the Dilution
Reserve Floor and (ii) the amount expressed as a percentage and calculated in accordance with the
following formula:
DRP = (SF x ED) + ((DS — ED) x (DS / ED)) x DHR
where:
|
|
|
|
|
|
|
|
|
|
|
SF
|
|
=
|
|
2.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
ED
|
|
=
|
|
the average of the Dilution Ratios for the twelve months most recently ended at such time.
|
|
|
|
|
|
|
|
|
|
|
|
DS
|
|
=
|
|
the highest two (2) consecutive month average of the Dilution Ratios during the immediately preceding twelve months.
|
|
|
|
|
|
|
|
|
|
|
|
DHR
|
|
=
|
|
the aggregate Original Balance of
all Receivables generated by
Originator during the most recently
ended one and one-half (1.5)
Calendar Month-period divided by
the Net Receivables Balance as of
the last day of such Calendar
Month; provided that any Managing
Agent may specify such other period
of time for purposes of determining
the numerator of DHR upon three (3)
Business Days’ prior written notice
to the other parties hereto at any
time within two (2) months after
the date on which the Managing
Agents receive the results of any
annual audit report prepared at the
request of any Managing Agent
pursuant to Section 7.1(d),
|
Exh. I-7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
provided, that no Managing Agent
may specify any such other period
of time unless such other period of
time is reasonably based upon and
verified by the results of any such
annual audit report.
|
“Dilutions” means, at any time, the aggregate amount of reductions or cancellations
described in clause (i) of the definition of “Deemed Collections”.
“Discount Rate” means, the LIBO Rate or the Prime Rate, as applicable, with respect to
each Purchaser Interest funded by the Committed Purchasers.
“Eligible Receivable” means, at any time, a Receivable:
(i) the Obligor of which is not an Affiliate of any of the parties hereto;
(ii) the Obligor of which is not the Obligor of any Charged-Off Receivable;
(iii) which is not a Charged-Off Receivable or a Delinquent Receivable;
(iv) which, if not a Dating Receivable, by its terms is due and payable within 120
days after the original billing date therefor and has not had its original payment terms
extended; provided that:
(A) if such Receivable is due and payable by its terms within 31 to 60 days
after the original billing date therefor, the Outstanding Balance of such
Receivable when added to the aggregate Outstanding Balance of all other Eligible
Receivables due and payable within 31 to 60 days after the original billing date
therefor does not exceed 20.00% of the aggregate Outstanding Balance of all
Receivables at such time;
(B) if such Receivable is due and payable by its terms within 61 to 90 days
after the original billing date therefor, the Outstanding Balance of such
Receivable, when added to the aggregate Outstanding Balance of all other Eligible
Receivables due and payable within 61 to 90 days after the original billing date
therefor does not exceed 3.00% of the aggregate Outstanding Balance of all
Receivables at such time; and
(C) if such Receivable is due and payable by its terms within 91 to 120 days
after the original billing date therefor, the Outstanding Balance of such
Receivable, when added to the aggregate Outstanding Balance of all other Eligible
Receivables due and payable within 91 to 120 days after the original billing date
therefor does not exceed 3.00% of the aggregate Outstanding Balance of all
Receivables at such time.
(v) which, if a Dating Receivable, by its terms is due and payable within 180 days
after the origination thereof and has not had its payment terms extended; provided that the
Outstanding Balance of such Dating Receivable when added to the
Exh. I-8
aggregate Outstanding Balance of all other Eligible Receivables that are Dating
Receivables does not exceed 3.00% of the aggregate Outstanding Balance of all Receivables
at such time;
(vi) which is an “account” within the meaning of Section 9-102 of the UCC of all
applicable jurisdictions;
(vii) which is denominated and payable only in United States dollars in the United
States;
(viii) which arises under a Contract in substantially the form of one of the form
contracts set forth on Exhibit IX hereto or otherwise approved by the Agent in writing,
which, together with such Receivable, is in full force and effect and constitutes the
legal, valid and binding obligation of the related Obligor enforceable against such Obligor
in accordance with its terms;
(ix) which, other than a Receivable arising from the sale of products under a
Specified Agreement, is not evidenced by, governed by and does not arise under any other
agreement, document or writing other than a Contract in substantially the form of one of
the form contracts set forth on Exhibit IX hereto or otherwise approved by the Agent in
writing;
(x) which arises under a Contract which Contract (a) does not require the Obligor
under such Contract to consent to the transfer, sale or assignment of the rights and duties
of Originator or any of its assignees under such Contract and (b) does not contain a
confidentiality provision that purports to restrict the ability of any Purchaser to
exercise its rights under this Agreement, including, without limitation, its right to
review the Contract;
(xi) which arises under a Contract that contains an obligation to pay a specified sum
of money, contingent only upon the sale of goods or the provision of services by
Originator;
(xii) which, together with the Contract related thereto, does not contravene in any
material respect any law, rule or regulation applicable thereto (including, without
limitation, any law, rule and regulation relating to truth in lending, fair credit billing,
fair credit reporting, equal credit opportunity, fair debt collection practices and
privacy) and with respect to which no part of the Contract related thereto is in violation
in any material respect of any such law, rule or regulation;
(xiii) which satisfies all applicable requirements of the Originator’s Credit and
Collection Policy;
(xiv) which was generated in the ordinary course of Originator’s business;
(xv) which arises solely from the sale of goods or the provision of services to the
related Obligor by Originator, and not by any other Person (in whole or in part);
Exh. I-9
(xvi) as to which the Agent has not notified Seller that the Agent has determined
that such Receivable or class of Receivables is not acceptable as an Eligible Receivable,
including, without limitation, because such Receivable arises under a Contract that is not
acceptable to the Agent, such notice to be provided at least ten (10) Business Days prior
to such Receivable being designated as unacceptable to the Managing Agent;
(xvii) which is not subject to any dispute, right of rescission, set off,
counterclaim, any other defense (including defenses arising out of violations of usury
laws) of the applicable Obligor against Originator or any other Adverse Claim, and the
Obligor thereon holds no right against Originator to cause Originator to repurchase the
goods or merchandise, the sale of which shall have given rise to such Receivable (except
with respect to sale discounts effected pursuant to the Contract, or defective goods
returned in accordance with the terms of the Contract);
(xviii) as to which Originator has satisfied and fully performed all obligations on
its part with respect to such Receivable required to be fulfilled by it, and no further
action is required to be performed by any Person with respect thereto other than payment
thereon by the applicable Obligor and any obligations of the Originator that relates to
standard warranties related to the goods sold which gave rise to such Receivable;
(xix) all right, title and interest to and in which has been validly transferred by
Originator directly to Seller under and in accordance with the Receivables Sale Agreement,
and Seller has good and marketable title thereto free and clear of any Adverse Claim; and
(xx) if the Obligor of which is one of the 15 Obligors with the greatest aggregate
Outstanding Balance of Receivables at such time, such Obligor is not the Obligor of
Delinquent Receivables, the Outstanding Balance of which in the aggregate constitute more
than 25.0% of the aggregate Outstanding Balance of all Receivables of such Obligor.
“ERISA” means the Employee Retirement Income Security Act of 1974 and any regulations
promulgated thereunder.
“Excess Foreign Receivables Amount” means at any time, the amount, if positive, equal
to (a) the aggregate Outstanding Balance of all Eligible Receivables which are Foreign Receivables
at such time minus (b) the product of (x) the Foreign Receivables Limit and (y) the aggregate
Outstanding Balance of all Eligible Receivables at such time.
“Excess Government Receivables Amount” means at any time, the amount, if positive,
equal to (a) the aggregate Outstanding Balance of all Eligible Receivables which are Government
Receivables at such time minus (b) the product of (x) the Government Receivables Limit and (y) the
aggregate Outstanding Balance of all Eligible Receivables at such time.
Exh. I-10
“Excluded Receivable” means any account receivable arising in connection with the sale
of goods by National Textiles, L.L.C., or after the merger of National Textiles, L.L.C. into HBI,
by the business operations of HBI which were the business operations of National Textiles, L.L.C.
prior to such merger, and in each case which account receivable is identified on Seller’s and
Servicer’s systems, books and records in the manner specified by Seller pursuant to Section
7.1(m).
“Facility Termination Date” means the earliest to occur of (i) November 27, 2010 and
(ii) the Amortization Date.
“Federal Bankruptcy Code” means Title 11 of the United States Code entitled
“Bankruptcy,” as amended and any successor statute thereto.
“Fee Letter” means that certain letter agreement dated as of the date hereof among
Seller, the Agent and the Managing Agents, as it may be amended, restated, supplemented or
otherwise modified and in effect from time to time.
“Finance Charges” means, with respect to a Contract, any finance, interest, late
payment charges or similar charges owing by an Obligor pursuant to such Contract.
“First Lien Credit Agreement” means that certain First Lien Credit Agreement, dated as
of September 5, 2006, among HBI, the lenders from time to time party thereto, the administrative
agent party thereto, the collateral agent party thereto and the other agents party thereto, as the
same may be amended, supplemented, amended and restated or otherwise modified from time to time and
includes any replacement thereof.
“First Lien Loan Documents” means the First Lien Credit Agreement and the related
guarantees, pledge agreements, security agreements, mortgages, notes and other agreements and
instruments entered into in connection with the First Lien Credit Agreement, in each case as the
same may be amended, supplemented, amended and restated or otherwise modified from time to time in
accordance with this Agreement.
“Foreign Receivable” means any Receivable, the Obligor of which, (i) if a natural
person, is not a resident of the United States or (ii) if a corporation or other business
organization, is neither organized under the laws of the United States or any political subdivision
thereof nor has its chief executive office in the United States.
“Foreign Receivables Limit” means 1.00%; provided that the Agent upon the direction of
any Managing Agent may reduce such percentage to zero or any other percentage less than 1.00% at
any time upon five (5) Business Days’ prior notice to Seller, the other Managing Agents and the
Servicer.
“Funding Agreement” means this Agreement and any agreement or instrument executed by
any Funding Source with or for the benefit of any Conduit Purchaser, including, without limitation,
any Liquidity Agreement.
Exh. I-11
“Funding Source” means (i) any Committed Purchaser or (ii) any insurance company, bank
or other funding entity providing liquidity, credit enhancement or back-up purchase support or
facilities to any Conduit Purchaser.
“GAAP” means generally accepted accounting principles in effect in the United States
of America as of the date of this Agreement.
“Governmental Authority” means any national, state or local government (whether
domestic or foreign), any political subdivision thereof or any other governmental,
quasi-governmental, judicial, regulatory, public or statutory instrumentality, authority, body,
agency, bureau or entity (including any zoning authority, the Federal Energy Regulatory Commission,
the Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable
authority).
“Government Receivable” means any Receivable the Obligor of which is a Governmental
Authority.
“Government Receivables Limit” means 2.00%; provided that the Agent upon the direction
of any Managing Agent may reduce such percentage to zero or any other percentage less than 2.00% at
any time upon five (5) Business Days’ prior notice to Seller, the other Managing Agents and the
Servicer.
“Group Purchase Limit” means, for each Purchase Group, the sum of the Commitments of
the Committed Purchasers in such Purchase Group.
“HBI” has the meaning set forth in the preamble to this Agreement.
“HBI Party” has the meaning set forth in Section 7.1(i).
“HSBC” means HSBC Bank USA National Association, and its successors and assigns.
“Incremental Purchase” means a purchase of one or more Purchaser Interests which
increases the total outstanding Aggregate Capital hereunder.
“Indebtedness” of a Person means such Person’s (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price of property or services (other than
accounts payable arising in the ordinary course of such Person’s business payable on terms
customary in the trade), (iii) obligations, whether or not assumed, secured by liens or payable out
of the proceeds or production from property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, acceptances, or other instruments, (v) capitalized lease
obligations, (vi) net liabilities under interest rate swap, exchange or cap agreements, (vii)
Contingent Obligations and (viii) liabilities in respect of unfunded vested benefits under plans
covered by Title IV of ERISA.
“Independent Director” shall mean a member of the Board of Directors of Seller who is
not at such time, and has not been at any time during the preceding five (5) years, (A) a director,
officer, employee or Affiliate of Seller, Originator, or any of their respective
Exh. I-12
Subsidiaries or Affiliates, or (B) the beneficial owner (at the time of such individual’s
appointment as an Independent Director or at any time thereafter while serving as an Independent
Director) of any of the outstanding common shares of Seller, Originator, or any of their respective
Subsidiaries or Affiliates, having general voting rights;
“JPMorgan” means JPMorgan Chase Bank, N.A., in its individual capacity and its
successors.
“LIBO” means the rate per annum equal to (a) the rate appearing on Reuters Screen
LIBOR01 Page (or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of the
relevant Tranche Period, as the rate for dollar deposits with a maturity comparable to such Tranche
Period; provided that, in the event that such rate is not available at such time for any
reason, then the rate for the relevant Tranche Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Tranche Period are offered by the principal London
office of the Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two (2) Business Days prior to the commencement of such Tranche Period,
divided by (b) one (1) minus the maximum aggregate reserve requirement (including all basic,
supplemental, marginal or other reserves) which is imposed against the Agent in respect of
Eurocurrency liabilities, as defined in Regulation D of the Board of Governors of the Federal
Reserve System as in effect from time to time (expressed as a decimal) applicable to such Tranche
Period.
“LIBO Rate” means the rate per annum equal to the sum of (i) LIBO plus (ii) the
Applicable Margin; provided that at all times after the occurrence and during the continuance of an
Amortization Event, the LIBO Rate shall be the Default Rate.
“Liquidity Agreement” means an agreement entered into by a Conduit Purchaser and the
Committed Purchasers in its Purchase Group in connection herewith for the purpose of providing
liquidity with respect to the Capital funded by such Conduit Purchaser.
“Lock-Box” means each locked postal box with respect to which a bank who has executed
a Collection Account Agreement has been granted exclusive access for the purpose of retrieving and
processing payments made on the Receivables.
“Loss Reserve” means, at any time, an amount equal to the Loss Reserve Percentage
multiplied by the Net Receivables Balance as of the close of business of the Servicer at such time.
“Loss Reserve Floor” means 12.0%.
“Loss Reserve Percentage” means, at any time, the greater of (i) the Loss Reserve
Floor and (ii) the amount expressed as a percentage and calculated in accordance with the following
formula:
Exh. I-13
LRP = LR x LHR x SF
where:
|
|
|
|
|
|
|
|
|
|
|
LR
|
|
=
|
|
the greatest three-month average Default Ratio during the immediately preceding 12-month period.
|
|
|
|
|
|
|
|
|
|
|
|
LHR
|
|
=
|
|
the aggregate Original Balance of all Receivables
generated by Originator during the three and one-half
(3.5) Calendar Months ending as of the last day of
the most recently ended Calendar Month immediately
preceding such time divided by the Net Receivables
Balance as of the last day of the most recently ended
Calendar Month.
|
|
|
|
|
|
|
|
|
|
|
|
SF
|
|
=
|
|
2.0 |
|
|
“Loss-to-Liquidation Ratio” means, at any time, a percentage equal to (i) the sum of
(A) the aggregate Outstanding Balance of all Receivables that became Charged-Off Receivables during
the most recently ended Calendar Month that were not also Delinquent Receivables as of the date
that such Receivables became Charged-Off Receivables and (B) the aggregate Outstanding Balance of
all Delinquent Receivables that were not also Defaulted Receivables as of the last day of such
Calendar Month divided by (ii) the aggregate amount of Collections during such Calendar Month.
“Managing Agent” has the meaning set forth in the preamble to this Agreement.
“Managing Agent Institution” has the meaning specified in Section 13.14(b).
“Managing Agent Institution Roles” has the meaning specified in Section
13.14(b).
“Material Adverse Effect” means a material adverse effect on (i) the financial
condition or operations of any Seller Party and its Subsidiaries, taken as a whole, (ii) the
ability of any Seller Party to perform its respective obligations under this Agreement, (iii) the
legality, validity or enforceability of this Agreement or any other Transaction Document, (iv) any
Purchaser’s interest in the Receivables generally or in any material portion of the Receivables,
the Related Security or the Collections with respect thereto, or (v) the collectibility of the
Receivables generally or of any material portion of the Receivables, other than due to the
insolvency, bankruptcy or creditworthiness of an Obligor.
“Material Obligor” means, at any time, an Obligor the Receivables of which are greater
than 4.0% of the aggregate Outstanding Balance of all Receivables at such time.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Net Receivables Balance” means, at any time, (i) the aggregate Outstanding Balance of
all Eligible Receivables at such time, minus (ii) the aggregate amount by which the Outstanding
Balance of the Eligible Receivables of each Obligor and its Affiliates exceeds the Concentration
Limit for such Obligor, minus (iii) the Excess Government Receivables Amount, minus (iv) the Excess
Foreign Receivables Amount.
Exh. I-14
“Obligations” shall have the meaning set forth in Section 2.1.
“Obligor” means a Person obligated to make payments pursuant to a Contract.
“Original Balance” means, with respect to any Receivable, the original outstanding
balance of such Receivable on the date such Receivable was originated.
“
Originator” means
Hanesbrands Inc., in its capacity as seller under the Receivables
Sale Agreement.
“Outstanding Balance” of any Receivable at any time means the then outstanding
principal balance thereof.
“Participant” has the meaning set forth in Section 12.2.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means a “pension plan”, as such term is defined in Section 3(2) of
ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as defined in Section
4001(a)(3) of ERISA), and to which Servicer or any corporation, trade or business that is, along
with the Servicer, a member of a Controlled Group, may have liability, including any liability by
reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any
time during the preceding five years, or by reason of being deemed to be a contributing sponsor
under Section 4069 of ERISA.
“Person” means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision or agency thereof.
“Pooled Commercial Paper” means Commercial Paper notes of a Conduit Purchaser subject
to any particular pooling arrangement by such Conduit Purchaser, but excluding Commercial Paper
issued by such Conduit Purchaser for a tenor and in an amount specifically requested by any Person
in connection with any agreement effected by such Conduit Purchaser.
“Potential Amortization Event” means an event which, with the passage of time or the
giving of notice, or both, would constitute an Amortization Event.
“Potential Servicer Default” means an event which, with the passage of time or the
giving of notice, or both, would constitute a Servicer Default.
“
Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan as its prime rate in effect at its principal office in
New York City; each change in
the Prime Rate shall be effective from and including the date such change is publicly announced as
being effective;
provided that at all times after the occurrence and during the continuance
of an Amortization Event, the Prime Rate shall mean the rate of interest described above plus 1.0%.
Exh. I-15
“Proposed Reduction Date” has the meaning set forth in Section 1.3.
“Pro Rata Share” means, for each Committed Purchaser in a Purchase Group, a percentage
equal to (i) the Commitment of such Committed Purchaser, divided by (ii) the aggregate amount of
all Commitments of all Committed Purchasers in such Purchase Group hereunder, adjusted as necessary
to give effect to the application of the terms of Section 1.1.
“Purchase Group” means any Managing Agent and its related Conduit Purchasers and
Committed Purchasers.
“Purchase Group Share” means, for any Purchase Group, the percentage equivalent to a
fraction (expressed out to five decimal places), the numerator of which is the aggregate
Commitments of all Committed Purchasers in such Purchase Group and the denominator of which is
Purchase Limit.
“Purchase Limit” means $250,000,000.
“Purchase Notice” has the meaning set forth in Section 1.2.
“Purchase Price” means, with respect to any Incremental Purchase of a Purchaser
Interest, the amount paid to Seller for such Purchaser Interest which shall not exceed the least of
(i) the amount requested by Seller in the applicable Purchase Notice, (ii) the unused portion of
the Purchase Limit on the applicable purchase date and (iii) the excess, if any, of the Net
Receivables Balance (less the Aggregate Reserves) on the applicable purchase date over the
aggregate outstanding amount of Aggregate Capital determined as of the date of the most recent
Daily Report, Weekly Report or Settlement Report, as applicable, taking into account such proposed
Incremental Purchase.
“Purchaser” means any Conduit Purchaser or Committed Purchaser, as applicable, and
“Purchasers” means all Conduit Purchasers and Committed Purchasers.
“Purchaser Interest” means, at any time, an undivided percentage ownership interest
(computed as set forth below) associated with a designated amount of Capital, selected pursuant to
the terms and conditions hereof in (i) each Receivable arising prior to the time of the most recent
computation or recomputation of such undivided interest, (ii) all Related Security with respect to
each such Receivable, and (iii) all Collections with respect to, and other proceeds of, each such
Receivable. Each such undivided percentage interest shall equal:
C / (NRB — AR)
where:
|
|
|
|
|
|
|
|
|
C
|
|
=
|
|
the Capital of such Purchaser Interest. |
|
|
|
|
|
|
|
|
|
NRB
|
|
=
|
|
the Net Receivables Balance. |
|
|
|
|
|
|
|
|
|
AR
|
|
=
|
|
the Aggregate Reserves. |
Exh. I-16
Such undivided percentage ownership interest shall be initially computed on its date of
purchase. Thereafter, until the Amortization Date, each Purchaser Interest shall be automatically
recomputed (or deemed to be recomputed) on each day prior to the Amortization Date. The variable
percentage represented by any Purchaser Interest as computed (or deemed recomputed) as of the close
of the business day immediately preceding the Amortization Date shall remain constant at all times
thereafter.
“Purchasing Committed Purchaser” has the meaning set forth in Section 12.1(b).
“Receivable” means all indebtedness and other obligations owed to Seller or Originator
(at the time it arises, and before giving effect to any transfer or conveyance under the
Receivables Sale Agreement or hereunder) or in which Seller or Originator has a security interest
or other interest, including, without limitation, any indebtedness, obligation or interest
constituting an account, chattel paper, instrument or general intangible, arising in connection
with the sale of goods or the rendering of services by Originator in the ordinary course of
business and further includes, without limitation, the obligation to pay any Finance Charges with
respect thereto. Indebtedness and other rights and obligations arising from any one transaction,
including, without limitation, indebtedness and other rights and obligations represented by an
individual invoice, shall constitute a Receivable separate from a Receivable consisting of the
indebtedness and other rights and obligations arising from any other transaction; provided, that
any indebtedness, rights or obligations referred to in the immediately preceding sentence shall be
a Receivable regardless of whether the account debtor, Originator or Seller treats such
indebtedness, rights or obligations as a separate payment obligation. The term “Receivable” shall
not include any Excluded Receivable.
“Receivables Sale Agreement” means that certain Receivables Sale Agreement dated the
date hereof between Originator and Seller, as the same may be amended, restated or otherwise
modified from time to time.
“Records” means, with respect to any Receivable, all Contracts and other documents,
books, records and other information (including, without limitation, computer programs, tapes,
disks, punch cards, data processing software and related property and rights) relating to such
Receivable, any Related Security therefor and the related Obligor.
“Reduction Notice” has the meaning set forth in Section 1.3.
“Regulatory Change” has the meaning set forth in Section 10.3.
“Reinvestment” has the meaning set forth in Section 2.2.
“Related Security” means, with respect to any Receivable:
(i) all of Seller’s interest in the inventory and goods (including returned or
repossessed inventory or goods), if any, the sale of which by Originator gave rise to such
Receivable, and all insurance contracts with respect thereto,
(ii) all other security interests or liens and property subject thereto from time to
time, if any, purporting to secure payment of such Receivable, whether pursuant
Exh. I-17
to the Contract related to such Receivable or otherwise, together with all financing
statements and security agreements describing any collateral securing such Receivable,
(iii) all guaranties, letters of credit, letter of credit rights, supporting
obligations, insurance 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,
(iv) all service contracts and other contracts and agreements associated with such
Receivable; provided that this clause (iv) shall not include any agreement or documents
between an Obligor and Originator or delivered to an Obligor which relate to cooperative
advertising arrangements, discount arrangements or requirements of merchants of
Originator’s product to the extent such agreements or documents do not evidence or give
rise to any Receivable and do not govern the origination, servicing or enforcement of any
Receivable,
(v) all Records related to such Receivable,
(vi) all of Seller’s right, title and interest in, to and under the Receivables Sale
Agreement in respect of such Receivable, and
(vii) all proceeds of any of the foregoing.
“Required Committed Purchasers” means, at any time, Committed Purchasers with
Commitments in excess of
66 2/3% of the Purchase Limit.
“Required Notice Period” means the number of days required notice set forth below
applicable to the Aggregate Reduction indicated below:
|
|
|
|
|
Aggregate Reduction |
|
Required Notice Period |
|
≤$100,000,000 |
|
Two (2) Business Days |
>$100,000,000 |
|
Five (5) Business Days |
“Restricted Junior Payment” means (i) any dividend or other distribution, direct or
indirect, on account of any shares of any class of equity interests of Seller now or hereafter
outstanding, except a dividend payable solely in shares of that class of equity interests or in any
junior class of equity interests of Seller, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any
class of equity interests of Seller now or hereafter outstanding, (iii) any payment or prepayment
of principal of, premium, if any, or interest, fees or other charges on or with respect to, and any
redemption, purchase, retirement, defeasance, sinking fund or similar payment and any claim for
rescission with respect to the Subordinated Loans (as defined in the Receivables Sale Agreement),
(iv) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of equity interests of
Seller now or hereafter outstanding, and (v)
Exh. I-18
any payment of management fees by Seller (except for reasonable management fees to Originator
or its Affiliates in reimbursement of actual management services performed).
“S&P” means Standard & Poor’s Ratings Group.
“Second Lien Credit Agreement” means the Second Lien Credit Agreement, dated as of
September 5, 2006, among the HBI Branded Apparel Limited, Inc., HBI, the lenders from time to time
party thereto, the administrative agent party thereto, the collateral agent party thereto and the
other agents party thereto, as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time and includes any replacement thereof.
“Second Lien Loan Documents” means the Second Lien Credit Agreement and the related
guarantees, pledge agreements, security agreements, mortgages, notes and other agreements and
instruments entered into in connection with the Second Lien Credit Agreement, in each case as the
same may be amended, supplemented, amended and restated or otherwise modified from time to time.
“Seller” has the meaning set forth in the preamble to this Agreement.
“Seller Parties” has the meaning set forth in the preamble to this Agreement.
“Senior Note Documents” means the Senior Notes, the Senior Note Indenture and all
other agreements, documents and instruments executed and delivered with respect to the Senior Notes
or the Senior Note Indenture, as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with this Agreement.
“Senior Note Indenture” means the Indenture dated as of December 14, 2006, among HBI,
the Person acting as trustee thereunder, and the guarantors named therein, as the same may be
amended, supplemented, amended and restated or otherwise modified from time to time
“Servicer” means at any time the Person (which may be the Agent) then authorized
pursuant to Article VIII to service, administer and collect Receivables.
“Servicer Default” has the meaning set forth in Section 8.7.
“Servicing Fee” has the meaning set forth in Section 8.6.
“Settlement Date” means the date that is two (2) Business Days after the third
Thursday of each month (or, if such third Thursday is not a Business Day, two (2) Business Days
after the next succeeding Business Day).
“Settlement Report” means a report, in substantially the form of Exhibit XI
hereto (appropriately completed), furnished by the Servicer to the Managing Agents and the Agent
pursuant to Section 8.5.
Exh. I-19
“Solvent” means, with respect to any Person on a particular date, that on such date
(a) the fair value of the property of such Person is greater than the total amount of liabilities,
including contingent liabilities, of such Person; (b) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured; (c) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay
as such debts and liabilities mature; and (d) such Person is not engaged in a business or
transaction, and is not about to engage in a business or transaction, for which such Person’s
property would constitute unreasonably small capital. The amount of contingent liabilities (such
as litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount
that, in light of all the facts and circumstances existing at the time, represents the amount that
can reasonably be expected to become an actual or matured liability.
“Specified Agreement” means any agreement specified in Schedule III to the Fee Letter.
“Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or controlled, directly
or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, or (ii) any partnership, association, limited liability company, joint
venture or similar business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a “Subsidiary” shall mean a Subsidiary of Seller.
“Terminating Tranche” has the meaning set forth in Section 4.3(b).
“Tranche Period” means, with respect to any Purchaser Interest funded by a Committed
Purchaser, including any Purchaser Interest or undivided interest in a Purchaser Interest assigned
to a Committed Purchaser pursuant to a Liquidity Agreement:
(a) if Yield for such Purchaser Interest is calculated on the basis of the LIBO Rate, a period
of one (1) month, or such other period as may be mutually agreeable to the applicable Managing
Agent and Seller, commencing on a Business Day selected by Seller or the applicable Managing Agent
pursuant to this Agreement. Such Tranche Period shall end on the day in the applicable succeeding
calendar month which corresponds numerically to the beginning day of such Tranche Period, provided,
however, that if there is no such numerically corresponding day in such succeeding month, such
Tranche Period shall end on the last Business Day of such succeeding month; or
(b) if Yield for such Purchaser Interest is calculated on the basis of the Prime Rate, a
period commencing on a Business Day selected by Seller and agreed to by the applicable Managing
Agent, provided no such period shall exceed one (1) month.
If any Tranche Period would end on a day which is not a Business Day, such Tranche Period
shall end on the next succeeding Business Day, provided, however, that in the case of
Tranche Periods corresponding to the LIBO Rate, if such next succeeding
Exh. I-20
Business Day falls in a new month, such Tranche Period shall end on the immediately preceding
Business Day. In the case of any Tranche Period for any Purchaser Interest which commences before
the Amortization Date and would otherwise end on a date occurring after the Amortization Date, such
Tranche Period shall end on the Amortization Date. The duration of each Tranche Period which
commences after the Amortization Date shall be of such duration as selected by the applicable
Managing Agent.
“Transaction Documents” means, collectively, this Agreement, each Purchase Notice, the
Receivables Sale Agreement, each Collection Account Agreement, the Fee Letter, the Subordinated
Note (as defined in the Receivables Sale Agreement) and all other instruments, documents and
agreements executed and delivered in connection herewith.
“Weekly Report” means a report, in substantially the form of Exhibit X hereto
(appropriately completed), furnished by the Servicer to the Managing Agents and the Agent pursuant
to Section 8.5.
“UCC” means the Uniform Commercial Code as from time to time in effect in the
specified jurisdiction.
“Yield” means:
(a) for each respective Tranche Period relating to Purchaser Interests funded by a Committed
Purchaser, including any Purchaser Interest or undivided interest in a Purchaser Interest assigned
to a Committed Purchaser pursuant to a Liquidity Agreement, an amount equal to the product of the
applicable Discount Rate for each Purchaser Interest multiplied by the Capital of such Purchaser
Interest for each day elapsed during such Tranche Period, annualized on a 360 day basis (or a 365
or 366 day basis, as applicable, in the case of the Prime Rate); and
(b) for each respective Accrual Period relating to Purchaser Interests funded by a Conduit
Purchaser, other than a Purchaser Interest which, or an undivided interest in which, has been
assigned by such Conduit Purchaser pursuant to a Liquidity Agreement, an amount equal to the
product of the CP Rate multiplied by the Capital of such Purchaser Interest for each day elapsed
during such Accrual Period, annualized on a 360-day basis.
“Yield and Servicing Fee Reserve” means, at any time, an amount equal to 1.50%
multiplied by the Net Receivables Balance at such time.
All accounting terms not specifically defined herein shall be construed in accordance with
GAAP. All terms used in Article 9 of the UCC in the State of
New York, and not specifically
defined herein, are used herein as defined in such Article 9.
Exh. I-21
EXHIBIT II
FORM OF PURCHASE NOTICE
[Date]
JPMorgan Chase Bank, N.A., as
Agent and as a Managing Agent
00 X. Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 0596
Attention: Asset Backed Securities Conduit Group
HSBC Bank USA National Association, as a Managing Agent
Re: PURCHASE NOTICE
Ladies and Gentlemen:
Reference is hereby made to the
Receivables Purchase Agreement, dated as of November 27, 2007,
by and among HBI Receivables LLC, a Delaware limited liability company (the “Seller”),
Hanesbrands
Inc., as Servicer, the Purchasers and Managing Agents party thereto, and JPMorgan Chase Bank, N.A.,
as Agent (the “
Receivables Purchase Agreement”). Capitalized terms used herein shall have the
meanings assigned to such terms in the
Receivables Purchase Agreement.
The Managing Agents are hereby notified of the following Incremental Purchase:
|
|
|
Purchase Price:
|
|
$[___] |
Date of Purchase:
|
|
[___], 20[___] |
Requested Discount Rate:
|
|
[LIBO Rate] [Prime Rate]
[Pooled Commercial Paper rate] |
Please wire transfer the Purchase Price in immediately available funds on the above specified
date of purchase to:
[Account Name: ]
[Account No. : ]
[Bank Name & Address: ]
[ABA #: ]
Reference: [ ]
Telephone advice to: [Name] @ Tel. No. [(___) ___-___]]
Exh. II-1
Please advise [Name] at telephone number [(___) ___-___] if none of the Conduit Purchasers in
your Purchase Group will be making this purchase.
In connection with the Incremental Purchase to be made on the above listed “Date of Purchase”
(the “Purchase Date”), the Seller hereby certifies that the following statements are true
on the date hereof, and will be true on the Purchase Date (before and after giving effect to the
proposed Incremental Purchase):
(i) the representations and warranties of the Seller set forth in Section 5.1 of the
Receivables Purchase Agreement are true and correct on and as of the Purchase Date as though made
on and as of such date;
(ii) no event has occurred and is continuing, or would result from the proposed Incremental
Purchase, that will constitute an Amortization Event or a Potential Amortization Event;
(iii) the Facility Termination Date has not occurred, the Aggregate Capital does not exceed
the Purchase Limit and the aggregate Purchaser Interests do not exceed 100%; and
(iv) the amount of Aggregate Capital is $[ ] after giving effect to the Incremental
Purchase to be made on the Purchase Date.
|
|
|
|
|
|
Very truly yours,
HBI RECEIVABLES LLC
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
Exh. II-2
EXHIBIT III
PLACES OF BUSINESS OF THE SELLER PARTIES;
LOCATIONS OF RECORDS;
FEDERAL EMPLOYER IDENTIFICATION NUMBER(S)
|
|
|
|
|
|
|
Hanesbrands Inc. |
|
HBI Receivables LLC |
Federal Employer
Identification Number
|
|
00-0000000
|
|
00-0000000 |
|
|
|
|
|
Principal Place of Business
|
|
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxx-Xxxxx
Xxxxx Xxxxxxxx 00000
|
|
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxx-Xxxxx
Xxxxx Xxxxxxxx 00000 |
|
|
|
|
|
Chief Executive Xxxxxx
|
|
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxx-Xxxxx
Xxxxx Xxxxxxxx 00000
|
|
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxx-Xxxxx
Xxxxx Xxxxxxxx 00000 |
|
|
|
|
|
Offices Where Records are
Kept
|
|
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxx-Xxxxx,
Xxxxx Xxxxxxxx 00000
|
|
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxx-Xxxxx,
Xxxxx Xxxxxxxx 00000 |
|
|
|
|
|
|
|
000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxx
Xxxxx Xxxxxxxx 00000
|
|
000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxx
Xxxxx Xxxxxxxx 00000 |
|
|
|
|
|
|
|
Data Xxxxxxxx Records
Management:
|
|
Data Xxxxxxxx Records
Management: |
|
|
|
|
|
|
|
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxx-Xxxxx
Xxxxx Xxxxxxxx 00000
|
|
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxx-Xxxxx
Xxxxx Xxxxxxxx 00000 |
|
|
|
|
|
|
|
000 Xxxxxxx Xxxx
Xxxxxxx-Xxxxx
Xxxxx Xxxxxxxx 00000
|
|
000 Xxxxxxx Xxxx
Xxxxxxx-Xxxxx
Xxxxx Xxxxxxxx 00000 |
|
|
|
|
|
|
|
0000 Xxxx Xxxxx Xxxx
Xxxxxxx-Xxxxx
Xxxxx Xxxxxxxx 00000
|
|
0000 Xxxx Xxxxx Xxxx
Xxxxxxx-Xxxxx
Xxxxx Xxxxxxxx 00000 |
|
|
|
|
|
|
|
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
|
|
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
0000 Xxxxxx Xxxxx
Xxxx Xxxxx
Xxxxx Xxxxxxxx 0000
|
|
0000 Xxxxxx Xxxxx
Xxxx Xxxxx
Xxxxx Xxxxxxxx 0000 |
Exh. III-1
EXHIBIT IV
FORM OF REDUCTION NOTICE
[Date]
JPMorgan Chase Bank, N.A., as a Managing Agent
and as Agent
00 X. Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset Backed Securities Conduit Group
HSBC Securities (USA) Inc.
Attn: Xxxxx Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Reduction Notice
Ladies and Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement, dated as of November 27,
2007, by and among HBI Receivables LLC, a Delaware limited liability company (the
“
Seller”),
Hanesbrands Inc., as Servicer, the Purchasers and Managing Agents party thereto,
and JPMorgan Chase Bank, N.A., as Agent (the “
Receivables Purchase Agreement”).
Capitalized terms used herein shall have the meanings assigned to such terms in the Receivables
Purchase Agreement.
|
|
|
|
|
|
Very truly yours,
HBI RECEIVABLES LLC
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
|
|
1 |
|
Must be in compliance with the Required Notice Period
Set forth in Exhibit I to the Receivables Purchase Agreement. |
Exh. IV-1
EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
To: JPMorgan Chase Bank, N.A., as Agent and as a Managing Agent, HSBC Bank USA, N.A., as a
Managing Agent, and each of the “Purchasers” party to the Agreement defined below.
This Compliance Certificate is furnished pursuant to that certain Receivables Purchase
Agreement dated as of November 27, 2007 among HBI Receivables LLC (the “Seller”),
Hanesbrands Inc.
(the “Servicer”), the Purchasers and Managing Agents party thereto and JPMorgan Chase Bank, N.A.,
as Agent for such Purchasers (the “Agreement”). Terms used herein and not otherwise defined herein
shall have the meanings assigned in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I, [ ], am the duly elected [ ] of Seller, and the duly elected [ ] of Servicer.
2. Attached hereto are copies of the financial statements of Seller, including a balance
sheet, [a] statement[s] of income [and retained earnings] and a statement of cash flows) for the
[fiscal year][quarterly period] ending
[ ], which, in each case, are true, complete and correct
in all material respects.
3. I have reviewed the terms of the Agreement and I have made, or have caused to be made
under my supervision, a detailed review of the transactions and conditions of Seller and Servicer
and its Subsidiaries during the accounting period covered by the attached financial statements.
4. The examinations described in paragraph 2 did not disclose, and I have no knowledge of,
the existence of any condition or event which constitutes an Amortization Event or Potential
Amortization Event, as each such term is defined under the Agreement, during or at the end of the
accounting period covered by the attached financial statements or as of the date of this
Certificate, except as set forth in paragraph 5 below.
5. Schedule I attached hereto sets forth financial data and computations evidencing
the compliance with Section 9.1(h) of the Agreement, all of which data and computations are
true, complete and correct.
6. Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the
nature of the condition or event, the period during which it has existed and the action which
Seller or Servicer, as applicable, has taken, is taking, or proposes to take with respect to each
such condition or event:
[
].
Exh. V-1
The foregoing certifications, together with the computations set forth in Schedule I
hereto and the financial statements delivered with this Certificate in support hereof, are made and
delivered this
[ ]
day of [ ], 20[ ].
Exh. V-2
SCHEDULE I TO COMPLIANCE CERTIFICATE
A. |
|
Schedule of Compliance as of [
], 20[
] with Section 7.1(a)(iii) of the
Agreement. Unless otherwise defined herein, the terms used in this Compliance Certificate
have the meanings ascribed thereto in the Agreement. |
This schedule relates to the
month ended: [
], 20[
]
Exh. V-3
EXHIBIT VI
FORM OF COLLECTION ACCOUNT AGREEMENT
(Attached.)
Exh. VI-1
Blocked Account Control Agreement
(“Lockbox and Lockbox Account — Shifting Control”) | JPMORGAN CHASE BANK, N.A.
V1.0_0705
Execution Copy
AGREEMENT dated as of November 27, 2007, by and among HBI Receivables LLC (“Seller”),
Hanesbrands Inc. (“HBI”), individually and as Servicer (“Servicer”), JPMorgan Chase Bank, N.A., as
Agent (“Agent”), and JPMorgan Chase Bank, N.A. (“Depositary”).
The parties hereto refer to Schedule A for a list of the Post Office Box
Numbers (the “Lockboxes”) and Account Numbers (the “Accounts”) in the name of
Hanesbrands Inc. maintained at Depositary and hereby agree as follows:
1. |
|
HBI, Seller, Servicer and Agent notify Depositary that pursuant to that certain
Receivables Sale Agreement, dated November 27, 2007 by and among HBI, as the seller
thereunder, and Seller, as the purchaser thereunder, HBI has transferred all of its right,
title and interest in and to, and exclusive ownership and control of, the Lockboxes and
Accounts to Seller. Seller, Servicer and Agent notify Depositary that pursuant to that
certain Receivables Purchase Agreement, dated November 27, 2007, among Seller, Servicer, the
“Purchasers” party thereto, the “Managing Agents” party thereto and Agent, Seller has
transferred to, and granted Agent a security interest in, the Lockboxes and all checks or
other items deposited from time to time therein and in the Accounts and all funds on deposit
from time to time therein. Depositary acknowledges being so notified. Depositary hereby
agrees that as of the date hereof, the title and account holder of each Lockbox and each
Account shall “HBI Receivables LLC”. |
|
2. |
|
(a) None of HBI, Seller or Servicer shall have any right to issue withdrawal, delivery or
other instructions which it otherwise would be entitled to give under the Applicable
Documentation (as hereinafter defined) with respect to the Lockboxes (collectively, “lockbox
instructions”), other than with respect to routine administrative matters, or any other right
or ability to control, access, pick up, withdraw or transfer items from the Lockboxes without
Agent’s express written consent with respect thereto. On each business day (and without
HBI’s, Seller’s, Servicer’s or any other person’s consent), Depositary shall open the mail
delivered to the Lockboxes and deposit the checks and other items contained therein into the
Accounts. |
|
|
|
(b) Prior to the Effective Time (as defined below) Depositary shall honor all withdrawal,
payment, transfer or other fund disposition or other instructions which the Seller (or Servicer
on Seller’s behalf) is entitled to give under the Applicable Documentation (as hereinafter
defined) (collectively, “account instructions” and, together with lockbox instructions,
“instructions”) received from the Seller or Servicer concerning the Accounts. On and after the
Effective Time, Depositary shall exclusively honor and comply with all instructions received
from Agent (but not those from HBI, Seller, Servicer or any other person) directing the
disposition of the funds on deposit in the Accounts and otherwise concerning the Accounts
without the consent of HBI, Seller, Servicer or any other person and none of HBI, Seller,
Servicer or any other person shall have any right or ability to access, withdraw or transfer
funds from the Accounts. |
|
|
|
For the purposes hereof, the “Effective Time” shall be the opening of business on the second
business day next succeeding the business day on which a notice purporting to be signed by Agent
in substantially the same form as Exhibit A, attached hereto, with a copy of this Agreement
attached thereto (a “Shifting Control Notice”), is actually received by the individual employee
of Depositary to whom the notice is required hereunder to be addressed or any employee
succeeding such employees duties and responsibilities; provided, however, that if any such
notice is so received after 12:00 noon, New York City time, on any business day, the “Effective
Time” shall be the |
Page 1 of 7
|
|
opening of business on the third business day next succeeding the business day on which such
receipt occurs; and, provided further, that a “business day” is any day other than a Saturday,
Sunday or other day on which Depositary is or is authorized or required by law to be closed. |
|
|
|
Notwithstanding the foregoing: (i) all transactions involving or resulting in a transaction
involving the Accounts duly commenced by Depositary or any affiliate prior to the Effective Time
and so consummated or processed thereafter shall be deemed not to constitute a violation of this
Agreement; and (ii) Depositary and/or any affiliate may (at its discretion and without any
obligation to do so) (x) cease honoring Seller’s instructions and/or commence honoring solely
Agent’s instructions concerning the Accounts at any time or from time to time after it becomes
aware that Agent has sent to it a Shifting Control Notice but prior to the Effective Time
therefor (including without limitation halting, reversing or redirecting any transaction
referred to in clause (i) above), or (y) deem a Shifting Control Notice to be received by it for
purposes of the foregoing paragraph prior to the specified individual’s actual receipt if
otherwise actually received by Depositary (or if such Shifting Control Notice contains minor
mistakes or other irregularities but otherwise substantially complies with the form attached
hereto as Exhibit A or does not attach an appropriate copy of this Agreement), with no liability
whatsoever to Seller or any other party for doing so. |
|
|
|
HBI, Seller, Servicer, Agent and Depositary agree that notwithstanding anything herein or
elsewhere to the contrary, Agent, or any party designated in writing by Agent, shall be
irrevocably entitled to exercise any and all rights in respect of, or in connection with, the
Accounts without HBI’s, Seller’s, Servicer’s or any of Seller’s affiliate’s consent, including,
without limitation, the right to give instructions directing the disposition of the funds in the
Accounts and Depositary agrees to comply with such instructions. Each of HBI, Seller, Servicer
and Agent agree that this Agreement grants “control” of the Accounts to Agent within the meaning
of Section 9-104 of the UCC. |
|
3. |
|
This Agreement supplements, rather than replaces, Depositary’s deposit account agreement,
terms and conditions, lockbox agreement and other standard documentation in effect from time
to time with respect to the Lockboxes, the Accounts or the services provided in connection
therewith (the “Applicable Documentation”), which Applicable Documentation will continue to
apply to the Lockboxes, the Accounts and such services, and the respective rights, powers,
duties, obligations, liabilities and responsibilities of the parties thereto and hereto, to
the extent not expressly conflicting with the provisions of this Agreement (however, in the
event of any such conflict, the provisions of this Agreement shall control). Prior to issuing
any instructions on or after the Effective Time, Agent shall provide Depositary with such
documentation as Depositary may reasonably request to establish the identity and authority of
the individuals issuing instructions on behalf of Agent. Agent may request the Depositary to
provide other services with respect to the Lockboxes or the Accounts on or after the Effective
Time; however, if such services are not authorized or otherwise covered under the Applicable
Documentation, Depositary’s decision to provide any such services shall be made in its sole
discretion (including without limitation being subject to Seller and/or Agent executing such
Applicable Documentation or other documentation as Depositary may require in connection
therewith). |
|
4. |
|
Depositary agrees not to exercise or claim any right of offset, banker’s lien or other like
right against the Accounts for so long as this Agreement is in effect except with respect to
(i) returned or charged-back items, reversals or cancellations of payment orders and other
electronic fund transfers or other corrections or adjustments to the Accounts or transactions
therein, (ii) overdrafts in the Accounts or (iii) Depositary’s charges, fees and expenses with
respect to the Accounts or the services provided hereunder. Depositary also acknowledges that
it does not have a security interest in the Accounts. |
|
5. |
|
Notwithstanding anything to the contrary in this Agreement: (i) Depositary shall have only
the duties and responsibilities with respect to the matters set forth herein as is expressly
set forth in writing herein and shall not be deemed to be an agent, bailee or fiduciary for
any party hereto; (ii) |
Page 2 of 7
|
|
Depositary shall be fully protected in acting or refraining from acting in good faith without
investigation on any notice (including without limitation a Shifting Control Notice),
instruction or request purportedly furnished to it by Seller or Agent in accordance with the
terms hereof, in which case the parties hereto agree that Depositary has no duty to make any
further inquiry whatsoever; (iii) it is hereby acknowledged and agreed that Depositary has no
knowledge of (and is not required to know) the terms and provisions of the separate agreement
referred to in paragraph 1 above or any other related documentation or whether any actions by
Agent (including without limitation the sending of a Shifting Control Notice), Seller or any
other person or entity are permitted or a breach thereunder or consistent or inconsistent
therewith, (iv) Depositary shall not be liable to any party hereto or any other person for any
action or failure to act under or in connection with this Agreement except to the extent such
conduct constitutes its own willful misconduct or gross negligence (and to the maximum extent
permitted by law, shall under no circumstances be liable for any incidental, indirect, special,
consequential or punitive damages); and (v) Depositary shall not be liable for losses or delays
caused by force majeure, interruption or malfunction of computer, transmission or communications
facilities, labor difficulties, court order or decree, the commencement of bankruptcy or other
similar proceedings or other matters beyond Depositary’s reasonable control. |
|
6. |
|
Seller hereby agrees to indemnify, defend and save harmless Depositary against any loss,
liability or expense (including reasonable fees and disbursements of counsel who may be an
employee of Depositary) (collectively, “Covered Items”) incurred in connection with this
Agreement, the Lockboxes or the Accounts (except to the extent due to Depositary’s willful
misconduct or gross negligence) or any interpleader proceeding relating thereto or incurred at
Seller’s direction or instruction. |
|
7. |
|
Depositary may terminate this Agreement (a) in its discretion upon the sending of at least
thirty (30) days’ advance written notice to the other parties hereto or (b) because of a
material breach by Seller or Agent of any of the terms of this Agreement or the Applicable
Documentation, upon the sending of at least ten (10) days advance written notice to the other
parties hereto. Agent may terminate this Agreement in its discretion upon the sending of at
least three (3) days advance written notice to the other parties hereto. Any other
termination or any amendment or waiver of this Agreement shall be effected solely by an
instrument in writing executed by all the parties hereto. The provisions of paragraphs 5 and
6 above shall survive any such termination. |
|
8. |
|
Seller shall compensate Depositary for the opening and administration of the Lockboxes and
the Accounts and services provided hereunder in accordance with Depositary’s fee schedules
from time to time in effect. Payment will be effected by a direct debit to the Accounts. |
|
9. |
|
Depositary hereby represents and warrants: |
(a) Depositary is a “bank” within the meaning of Section 9-102(a)(8) of the Uniform Commercial
Code in effect in the State of New York (“UCC”); and
(b) That the Accounts are “deposit accounts” within the meaning of Section 9-102(a)(29) of the
UCC.
10. |
|
This Agreement: (i) may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument; (ii) shall become effective when
counterparts hereof have been signed by
the parties hereto; and (iii) shall be governed by and construed in
accordance with the laws of the State of New York. The parties hereto
agree that New York shall be the Bank’s jurisdiction for all purposes of
Article 9 of the UCC. |
|
|
|
All parties hereby waive all rights to a trial by jury in any action or
proceeding relating to the |
Page 3 of 7
|
|
Lockboxes, the Accounts or this Agreement. All notices under this Agreement shall be in writing and sent (including
via facsimile transmission) to the parties hereto at their respective
addresses or fax numbers set forth below (or to such other address or fax
number as any such party shall designate in writing to the other parties
from time to time). |
Page 4 of 7
|
|
|
|
|
|
|
|
|
|
|
HBI RECEIVABLES LLC |
|
|
|
HANESBRANDS INC. |
|
|
|
By:
|
|
|
|
|
|
By: |
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address for Notices:
|
0000 Xxxx
Xxxxx Xxxx Xxxx Xxxxxxx-Xxxxx, XX 00000
|
|
|
|
Address for Notices |
0000 Xxxx
Xxxxx Xxxx Xxxx Xxxxxxx-Xxxxx, XX 00000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fax No.:
|
|
(000) 000-0000
|
|
|
|
Fax No.: |
|
(000) 000-0000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A. (“Depositary”)
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address For Notices:
|
|
JPMorgan Chase Bank, N.A. |
|
|
|
|
|
|
|
|
|
|
0000 Xxxxxxxx Xxxx XX, 00xx Xxxxx |
|
|
|
|
|
|
|
|
|
|
Xxxxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
|
Fax:
|
|
000-000-0000 |
|
|
|
|
|
|
|
|
Attention:
|
|
Treasury & Securities Services |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A. (“Agent”)
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
Name: Xxxx X. Xxxxxx
Title: Vice President
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address for Notices:
|
|
JPMorgan
Chase Bank, N.A. |
|
|
|
|
|
|
|
|
|
|
Asset-Backed Securities Conduit Group |
|
|
|
|
|
|
|
|
|
|
10 X. Xxxxxxxx |
|
|
|
|
|
|
|
|
|
|
Mail Code IL1-0612 |
|
|
|
|
|
|
|
|
|
|
Xxxxxxx, Xxxxxxxx 00000 |
|
|
|
|
|
|
|
|
Fax No:
|
|
(000) 000-0000 |
|
|
|
|
|
|
|
|
Page 5 of 7
Blocked Account Agreement | EXHIBIT A — SHIFTING CONTROL NOTICE
Date: [MM/DD/YYYY]
JPMorgan Chase Bank, N.A.
0000 Xxxxxxxx Xxxx XX, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: Treasury & Securities Services
Re: Blocked Account Control Agreement dated as of November 27, 2007, by and among HBI Receivables
LLC (“Seller”), Hanesbrands Inc. (“HBI”), individually and as Servicer (“Servicer”), JPMorgan Chase
Bank, N.A. (“Agent”) and JPMorgan Chase Bank, N.A. (“Depositary”).
Ladies and Gentlemen:
This constitutes a Shifting Control Notice as referred to in paragraph 2 of the Agreement, a copy
of which is attached hereto.
|
|
|
|
|
JPMORGAN CHASE BANK, N.A., as Agent
|
|
|
By: |
|
|
|
|
Signature |
|
|
|
Name: |
|
|
|
|
Title: |
|
|
Page 6 of 7
Blocked
Account Agreement | SCHEDULE A — LIST OF LOCKBOXES AND ACCOUNTS
Page 7 of 7
EXHIBIT VII
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this “Assignment Agreement”) is entered into as of the
[ ___ ] day of [
], 20 [ ___ ], by and between [
]
(“Assignor”)
and [
] (“Assignee”).
A. This Assignment Agreement is being executed and delivered in accordance with Section
12.1(b) of that certain Receivables Purchase Agreement dated as of November 27, 2007 by and
among HBI Receivables LLC, as Seller, Hanesbrands Inc., as Servicer, the Purchasers and Managing
Agents party thereto, and JPMorgan Chase Bank, N.A., as Agent (as amended, modified or restated
from time to time, the “Purchase Agreement”) and
Section [ ___ ] of that certain [APA] among
[
] (as amended, modified or restated from time to time, the “APA”). Capitalized terms
used and not otherwise defined herein are used with the meanings set forth or incorporated by
reference in the Purchase Agreement or the APA, as applicable.
B. Assignor is a Committed Purchaser party to the Purchase Agreement and an APA Bank party to
the APA, and Assignee wishes to become a Committed Purchaser and APA Bank under the Purchase
Agreement and the APA, respectively; and
C.
Assignor is selling and assigning to Assignee an undivided [
___ ]% (the “Transferred
Percentage”) interest in all of Assignor’s rights and obligations under the Purchase Agreement,
the APA and the Transaction Documents, including, without limitation, Assignor’s Commitment and (if
applicable) the Capital of Assignor’s Purchaser Interests as set forth herein.
The parties hereto hereby agree as follows:
1. The sale, transfer and assignment effected by this Assignment Agreement shall become
effective (the “Effective Date”) two (2) Business Days (or such other date selected by the
Managing Agent for the Assignor in its sole discretion) following the date on which a notice
substantially in the form of Schedule II to this Assignment Agreement (“Effective
Notice”) is delivered by such Managing Agent to the related Conduit Purchaser, the Agent,
Assignor and Assignee. From and after the Effective Date, Assignee shall be a Committed Purchaser
party to the Purchase Agreement and an APA Bank party to the APA for all purposes thereof as if
Assignee were an original party thereto and Assignee agrees to be bound by all of the terms and
provisions contained therein.
2. If Assignor has no outstanding Capital under the Purchase Agreement, on the Effective Date,
Assignor shall be deemed to have hereby transferred and assigned to Assignee, without recourse,
representation or warranty (except as provided in
Exh. VII-1
paragraph 6 below), and the Assignee shall be deemed to have hereby irrevocably taken,
received and assumed from Assignor, the Transferred Percentage of Assignor’s Commitment and all
rights and obligations associated therewith under the terms of the Purchase Agreement and the APA,
including, without limitation, the Transferred Percentage of Assignor’s future funding obligations
under Section 1.1 of the Purchase Agreement and Section 2.1 of the APA.
3. If Assignor has any outstanding Capital under the Purchase Agreement, at or before 12:00
noon, local time of Assignor, on the Effective Date Assignee shall pay to Assignor, in immediately
available funds, an amount equal to the sum of (i) the Transferred Percentage of the outstanding
Capital of Assignor’s Purchaser Interests (such amount, being hereinafter referred to as the
“Assignee’s Capital”); (ii) all accrued but unpaid (whether or not then due) Yield
attributable to Assignee’s Capital; and (iii) accruing but unpaid fees and other costs and expenses
payable in respect of Assignee’s Capital for the period commencing upon each date such unpaid
amounts commence accruing, to and including the Effective Date (the “Assignee’s Acquisition
Cost”); whereupon, Assignor shall be deemed to have sold, transferred and assigned to Assignee,
without recourse, representation or warranty (except as provided in paragraph 6 below), and
Assignee shall be deemed to have hereby irrevocably taken, received and assumed from Assignor, the
Transferred Percentage of Assignor’s Commitment and the Capital of Assignor’s Purchaser Interests
(if applicable) and all related rights and obligations under the Purchase Agreement and the
Transaction Documents, including, without limitation, the Transferred Percentage of Assignor’s
future funding obligations under Section 1.1 of the Purchase Agreement and Section
2.1 of the APA.
4. Concurrently with the execution and delivery hereof, Assignor will provide to Assignee
copies of all documents requested by Assignee which were delivered to Assignor pursuant to the
Purchase Agreement.
5. Each of the parties to this Assignment Agreement agrees that at any time and from time to
time upon the written request of any other party, it will execute and deliver such further
documents and do such further acts and things as such other party may reasonably request in order
to effect the purposes of this Assignment Agreement.
6. By executing and delivering this Assignment Agreement, Assignor and Assignee confirm to and
agree with each other, the Agent, the Managing Agents and the Committed Purchasers as follows: (a)
other than the representation and warranty that it has not created any Adverse Claim upon any
interest being transferred hereunder, Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made by any other
Person in or in connection with the Purchase Agreement or the Transaction Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of Assignee, the
Purchase Agreement or any other instrument or document furnished pursuant thereto or the
perfection, priority, condition, value or sufficiency of any collateral; (b) Assignor makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Seller, any Obligor, any Seller Affiliate or the performance or observance by the Seller, any
Obligor, any Seller Affiliate of any of their respective obligations under the Transaction
Exh. VII-2
Documents or any other instrument or document furnished pursuant thereto or in connection
therewith; (c) Assignee confirms that it has received a copy of the Purchase Agreement and copies
of such other Transaction Documents, and other documents and information as it has requested and
deemed appropriate to make its own credit analysis and decision to enter into this Assignment
Agreement; (d) Assignee will, independently and without reliance upon the Agent, any Managing
Agent, any Conduit Purchaser, the Seller or any other Committed Purchaser or Purchaser and based on
such documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Purchase Agreement and the Transaction
Documents; (e) Assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Transaction Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably incidental thereto; and (f) Assignee
agrees that it will perform in accordance with their terms all of the obligations which, by the
terms of the Purchase Agreement and the other Transaction Documents, are required to be performed
by it as a Committed Purchaser or, when applicable, as a Purchaser.
7. Each party hereto represents and warrants to and agrees with the Agent that it is aware of
and will comply with the provisions of the Purchase Agreement, including, without limitation,
Sections 4.1, 13.6 and 13.7 thereof.
8. Schedule I hereto sets forth the revised Commitment of Assignor and the Commitment
of Assignee, as well as administrative information with respect to Assignee.
9. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
10. Assignee hereby covenants and agrees that, prior to the date which is one (1) year and one
(1) day after the payment in full of all senior indebtedness for borrowed money of Conduit
Purchaser, it will not institute against, or join any other Person in instituting against, Conduit
Purchaser any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or
other similar proceeding under the laws of the United States or any state of the United States.
Exh. VII-3
|
|
|
|
|
|
[ASSIGNOR]
|
|
|
By: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
[ASSIGNEE]
|
|
|
By: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
[Consented to by:
HBI RECEIVABLES LLC
|
|
|
By: |
|
|
|
|
Title:] |
|
|
|
|
|
Exh. VII-4
SCHEDULE I TO ASSIGNMENT AGREEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
Date:
[ _______________ ], 20[ __ ]
Transferred Percentage: [_____]%
|
|
|
|
|
|
|
|
|
|
|
X-0 |
|
X-0 |
|
X-0 |
|
X-0 |
|
|
|
|
|
|
|
|
|
Assignor
|
|
Commitment (prior to giving
effect to the
Assignment
Agreement)
|
|
Commitment (after
giving effect to
the Assignment
Agreement)
|
|
Outstanding Capital
(if any)
|
|
Ratable Share of
Outstanding Capital |
|
|
|
|
|
|
|
|
|
|
|
|
|
X-0 |
|
X-0 |
|
X-0 |
|
|
|
|
|
|
|
|
|
Assignee
|
|
Commitment (prior to giving
effect to the Assignment
Agreement)
|
|
Commitment (after
giving effect to
the Assignment
Agreement)
|
|
Outstanding Capital
(if any)
|
|
Ratable Share of
Outstanding Capital |
Address for Notices
[
]
[
]
Attention: [
]
Phone: [
]
Fax: [
]
Exh. VII-5
SCHEDULE II TO ASSIGNMENT AGREEMENT
EFFECTIVE NOTICE
|
|
|
TO:
|
|
[ ], Assignor |
|
|
[ ] |
|
|
[ ] |
|
|
[ ] |
|
|
|
TO:
|
|
[ ], Assignee |
|
|
[ ] |
|
|
[ ] |
|
|
[ ] |
The undersigned, as Agent and the Managing Agent for the Assignor’s Purchase Group,
respectively, under the Receivables Purchase Agreement dated as of November 27, 2007 by and among
HBI Receivables LLC, as Seller, Hanesbrands Inc., as Servicer, the Purchasers and Managing Agents
party thereto, and JPMorgan Chase Bank, N.A., as Agent hereby acknowledges receipt of executed
counterparts of a completed Assignment Agreement dated as of [ ], 20[___] between
[ ], as Assignor, and
[ ],
as Assignee. Terms defined in such
Assignment Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the Effective Date will be
[ ], 20[___].
2. The Managing Agent, on behalf of the affected Conduit Purchaser(s) hereby consents to the
Assignment Agreement as required by Section 12.1(b) of the Receivables Purchase Agreement
and Section [___] of the APA.
Exh. VII-6
[3. Pursuant to such Assignment Agreement, the Assignee is required to pay $[ ] to
Assignor at or before 12:00 noon (local time of Assignor) on the Effective Date in immediately
available funds.]
|
|
|
|
|
|
Very truly yours,
JPMORGAN CHASE BANK, N.A.,
individually and as Agent
|
|
|
By: |
|
|
|
|
Title: |
|
|
|
|
|
|
Exh. VII-7
EXHIBIT VIII
CREDIT AND COLLECTION POLICY
See Exhibit V to Receivables Sale Agreement
Exh. VIII-1
EXHIBIT IX
FORM OF CONTRACT(S)
See Attached
Exh. IX-1
THE INVOICE ON THE REVERSE HEREOF FROM SELLER TO BUYER IS
EXPRESSLY SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1. |
|
F.O.B. SHIPPING POINT. NO ANTICIPATION ALLOWED. DISCOUNT IS ALLOWED
ON THE MERCHANDISE TOTAL ONLY. THIS INVOICE FROM SELLER TO BUYER IS
EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS SET FORTH ON THE
REVERSE HEREOF. |
|
2. |
|
SELLER WARRANTS THAT THE GOODS ARE AS DESCRIBED ON THE REVERSE HEREOF
AND FURTHER, THE PRODUCTS COVERED BY THIS INVOICE ARE IN ACCORDANCE
WITH THE PROVISIONS ON THE FLAMMABLE FABRICS ACT AND THE TEXTILE
FIBER PRODUCTS IDENTIFICATION ACT FILED WITH THE FEDERAL TRADE COMMISSION.
ADDITIONALLY, WE HEREBY CERTIFY THAT ALL GOODS AND SERVICES COVERED BY THIS
INVOICE WERE PRODUCED AND FURNISHED IN COMPLIANCE WITH THE REQUIREMENTS OF THE FAIR
LABOR STANDARDS ACT OF 1938 AS AMENDED, AND ANY REGULATIONS AND ORDERS ISSUED THEREUNDER.
NO OTHER EXPRESS WARRANTY IS MADE IN RESPECT TO THE GOODS. |
|
3. |
|
ALL CLAIMS FOR ERRORS RELATING TO GOODS DELIVERED BY SELLER TO BUYER
UNDER THIS CONTRACT SHALL BE MADE BY BUYER WITHIN A PERIOD OF FIVE(5)
DAYS AFTER THE GOODS ARE DELIVERED TO BUYER. FAILURE TO MAKE ANY
CLAIM WITHIN FIVE(5) DAYS SHALL CONSTITUTE AN IRREVOCABLE
ACCEPTANCE OF THE GOODS AND AN ADMISSION THAT THEY FULLY COMPLY
WITH ALL TERMS, CONDITIONS, AND SPECIFICATIONS OF THIS CONTRACT.
|
|
4. |
|
BUYER SHALL PAY THE PRICE WITHIN THE TERM SPECIFICALLY SET FORTH ON
THIS INVOICE FROM THE DATE OF THE INVOICE. SELLER RESERVES THE RIGHT
TO CHARGE BUYER REASONABLE FINANCE CHARGES ON PAST DUE BALANCES OR
ON PAYMENTS MADE NOT WITHIN THE SPECIFIED TERM. FURTHER, WHERE
PERMITTED BY APPLICABLE STATE LAW, BUYER SHALL PAY TO SELLER
REASONABLE COST OF COLLECTION OF MONEY DUE AND UNPAID INCLUDING
REASONABLE ATTORNEY’S FEES. |
|
5. |
|
MERCHANDISE CANNOT BE RETURNED WITHOUT WRITTEN PERMISSION. |
|
6. |
|
HANESBRANDS INC. PRODUCTS IRREGULARS AND CLOSE-OUTS ARE SOLD ON THE
CONDITION THAT ITS BRAND NAME(S) WILL NOT BE USED IN ADVERTISING
THEIR SALE. A DESCRIPTION SUCH AS “FAMOUS BRAND” OR “GOODS OF NATIONALLY ADVERTISED
BRAND” MAY BE USED.
|
EXHIBIT X
FORM OF WEEKLY REPORT
(Attached.)
Exh. X-1
HBI Receivables LLC
Weekly Settlement Report
|
|
|
|
|
|
|
|
|
Report as of: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Weekly Period:
|
|
|
|
thru
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
I. |
|
RECEIVABLES ROLLFORWARD |
|
|
|
|
|
|
Beginning Receivables Balance |
|
|
0 |
|
|
|
+ Gross Sales |
|
|
0 |
|
|
|
+ Debit Adjustments |
|
|
0 |
|
|
|
- Cash Collections |
|
|
0 |
|
|
|
- Credit Adjustments, Write-Offs, and Recoveries |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
Ending Receivables Balance |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
II. |
|
RECEIVABLES AGING SCHEDULE |
|
|
|
|
|
|
Total Agings |
|
|
|
|
|
|
Current |
|
|
0 |
|
|
|
1-30 dpd |
|
|
0 |
|
|
|
31-60 dpd |
|
|
0 |
|
|
|
61-90 dpd |
|
|
0 |
|
|
|
91+ dpd |
|
|
0 |
|
|
|
Credit Memos and Unapplied Cash |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
Total Receivables Balance |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
III. |
|
ELIGIBLE RECEIVABLES |
|
|
|
|
|
|
Per Most Recent Monthly Report: |
|
|
|
|
|
|
Total Receivables Balance |
|
|
0 |
|
|
|
Eligible Receivables Balance |
|
|
0 |
|
|
|
Ineligible Receivables |
|
|
0 |
|
|
|
Ineligible Receivables Percentage |
|
|
0.00 |
% |
|
|
|
|
|
|
|
|
|
Per This Weekly Report: |
|
|
|
|
|
|
Total Receivables Balance |
|
|
0 |
|
|
|
Ineligible Receivables Percentage (calculated above) |
|
|
0.00 |
% |
|
|
Eligible Receivables Balance |
|
|
0 |
|
|
|
|
|
|
|
|
IV. |
|
OBLIGOR CONCENTRATION LIMITS |
|
|
|
|
|
|
Per Most Recent Monthly Report: |
|
|
|
|
|
|
Eligible Receivables Balance |
|
|
0 |
|
|
|
Excess Obligor Concentrations |
|
|
0 |
|
|
|
Excess Other Concentrations |
|
|
0 |
|
|
|
Excess Concentration Percentage |
|
|
0.00 |
% |
|
|
|
|
|
|
|
|
|
Per This Weekly Report: |
|
|
|
|
|
|
Eligible Receivables Balance |
|
|
0 |
|
|
|
Excess Concentration Percentage (calculated above) |
|
|
0.00 |
% |
|
|
Excess Concentrations |
|
|
0 |
|
|
|
|
|
|
|
|
V. |
|
FUNDING AVAILABILITY |
|
|
|
|
|
|
Eligible Receivables Balance |
|
|
0 |
|
|
|
- Excess Concentrations |
|
|
0 |
|
|
|
Net Receivables Balance |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
- Loss Reserve Percentage per last Monthly Report |
|
|
0.00 |
% |
|
|
- Dilution Reserve Percentage per last Monthly Report |
|
|
0.00 |
% |
|
|
- Yield & Servicing Reserves per last Monthly Report |
|
|
0.00 |
% |
|
|
Total Reserve Requirement |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
Available Funding Amount |
|
|
0 |
|
|
|
|
|
|
|
|
VI. |
|
INCREASE / DECREASE IN CAPITAL |
|
|
|
|
|
|
Maximum Funding Amount |
|
|
250,000 |
|
|
|
Amount Available for Funding Under the Facility |
|
|
0 |
|
|
|
Beginning Capital Outstanding |
|
|
0 |
|
|
|
Remaining Available Capital |
|
|
0 |
|
|
|
Required Capital Paydown |
|
|
0 |
|
|
|
Requested Increase / Purchase Amount |
|
|
0 |
|
|
|
Required / Optional Repayment (min. equals Required Paydown) |
|
|
0 |
|
|
|
Ending Capital Outstanding |
|
|
0 |
|
|
|
|
|
|
|
|
VII. |
|
COMPLIANCE |
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchaser Interest |
|
|
|
|
|
|
Outstanding Capital |
|
|
0 |
|
|
|
Net Receivables Balance |
|
|
0 |
|
|
|
Aggregate Reserves |
|
|
0 |
|
|
|
Purchaser Interest |
|
|
0.00 |
% |
|
|
Compliance? |
|
Yes |
The undersigned hereby represents and warrants that the foregoing is true and correct as of the
date hereof in accordance with the Receivables Purchase Agreement dated November 27, 2007 (and as
may be amended and otherwise modified from time to time).
|
|
|
|
|
X.X. Xxxxxx Securities Inc. |
|
|
|
|
HSBC Securities (USA) Inc.
|
|
Page 1 of 1
|
|
HBI Receivables LLC |
EXHIBIT XI
FORM OF SETTLEMENT REPORT
(Attached.)
Exh. XI-1
HBI Receivables LLC
Monthly Settlement Report
|
|
|
|
|
|
|
|
|
Report Period: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Report as of: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
I. |
|
RECEIVABLES ROLLFORWARD |
|
|
|
|
|
|
Beginning Receivables Balance |
|
|
0 |
|
|
|
+ Gross Sales |
|
|
0 |
|
|
|
+ Debit Adjustments |
|
|
0 |
|
|
|
- Cash Collections |
|
|
0 |
|
|
|
- Bad Debt Write-Offs |
|
|
0 |
|
|
|
+ Recoveries |
|
|
0 |
|
|
|
- Credit Adjustments and Customer Deduction Write-Offs |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
Ending Receivables Balance |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
II. |
|
RECEIVABLES AGING SCHEDULE |
|
|
|
|
|
|
Debit Only |
|
|
|
|
|
|
Current |
|
|
0 |
|
|
|
1-30 dpd |
|
|
0 |
|
|
|
31-60 dpd |
|
|
0 |
|
|
|
61-90 dpd |
|
|
0 |
|
|
|
91+ dpd |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
Total Debit Receivables Balance |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Credit Only |
|
|
|
|
|
|
Current |
|
|
0 |
|
|
|
1-30 dpd |
|
|
0 |
|
|
|
31-60 dpd |
|
|
0 |
|
|
|
61-90 dpd |
|
|
0 |
|
|
|
91+ dpd |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
Total Credit Receivables Balance |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Agings |
|
|
|
|
|
|
Current |
|
|
0 |
|
|
|
1-30 dpd |
|
|
0 |
|
|
|
31-60 dpd |
|
|
0 |
|
|
|
61-90 dpd |
|
|
0 |
|
|
|
91+ dpd |
|
|
0 |
|
|
|
Credit Memos and Unapplied Cash |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
Total Receivables Balance |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
III. |
|
ELIGIBLE RECEIVABLES |
|
|
|
|
|
|
Total Receivables Balance |
|
|
0 |
|
|
|
- Delinquent Receivables (> 60 dpd) |
|
|
0 |
|
|
|
- Intercompany / Affiliated Receivables |
|
|
0 |
|
|
|
- Foreign Receivables |
|
|
0 |
|
|
|
- Receivables from Bankrupt Obligors |
|
|
0 |
|
|
|
- Contra Accounts |
|
|
0 |
|
|
|
- Cross-Age (25% for Top 15 Obligors) |
|
|
0 |
|
|
|
- Aged Customer Credits |
|
|
0 |
|
|
|
- Unprocessed Credit Memos |
|
|
0 |
|
|
|
- Duplicated Sock Sales |
|
|
0 |
|
|
|
- Posting Differences to G/L Account |
|
|
0 |
|
|
|
- Payment Terms of 31-60 Days > 20% |
|
|
0 |
|
|
|
- Payment Terms of 61-90 Days > 3% |
|
|
0 |
|
|
|
- Payment Terms of 91-120 Days > 3% |
|
|
0 |
|
|
|
- Dating Receivables > 3% |
|
|
0 |
|
|
|
- Extended Payment Terms or Payment Terms > 120 days |
|
|
0 |
|
|
|
- Receivables with COD or CIA Payment Terms |
|
|
0 |
|
|
|
- Unapplied Cash Not Applied to the Aging |
|
|
0 |
|
|
|
- Trade Receivables Converted to Notes |
|
|
0 |
|
|
|
- Other Ineligibles |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
Eligible Receivables Balance |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
X.X. Xxxxxx Securities Inc. |
|
|
|
|
HSBC Securities (USA) Inc.
|
|
Page 1 of 3
|
|
HBI Receivables LLC |
HBI Receivables LLC
Monthly Settlement Report
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IV. |
|
CONCENTRATION LIMITS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
% of Eligible |
|
Concentration |
|
Excess |
|
|
Obligor Concentration Limits |
|
Eligible A/R Balance |
|
Receivables |
|
Limit |
|
Concentrations |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1. Obligor A |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
2. Obligor B |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
3. Obligor C |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
4. Obligor D |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
5. Obligor E |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
6. Obligor F |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
7. Obligor G |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
8. Obligor H |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
9. Obligor I |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
10. Obligor J |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
0 |
|
|
|
0.00 |
% |
|
|
|
|
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
% of Eligible |
|
Concentration |
|
Excess |
|
|
Other Concentration Limits |
|
Eligible A/R Balance |
|
Receivables |
|
Limit |
|
Concentrations |
|
|
1. U.S. Government Receivables |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
2. Foreign Receivables |
|
|
0 |
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
0 |
|
|
|
0.00 |
% |
|
|
|
|
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
V. |
|
FUNDING AVAILABILITY |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eligible Receivables Balance |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- Excess Obligor Concentrations |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- Excess Other Concentrations |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Receivables Balance |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- Loss Reserves |
|
|
0 |
|
|
|
0.00 |
% |
|
|
|
|
|
|
|
|
|
|
- Dilution Reserves |
|
|
0 |
|
|
|
0.00 |
% |
|
|
|
|
|
|
|
|
|
|
- Yield & Servicing Reserves |
|
|
0 |
|
|
|
0.00 |
% |
|
|
|
|
|
|
|
|
|
|
Total Reserve Requirement |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Available Funding Amount |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
VI. |
|
INCREASE / DECREASE IN CAPITAL |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum Funding Amount |
|
|
250,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount Available for Funding Under the Facility |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beginning Capital Outstanding |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Remaining Available Capital |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Required Capital Paydown |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Requested Increase / Purchase Amount |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Required / Optional Repayment (min. equals Required Paydown) |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ending Capital Outstanding |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
X.X. Xxxxxx Securities Inc. |
|
|
|
|
HSBC Securities (USA) Inc.
|
|
Page 2 of 3
|
|
HBI Receivables LLC |
HBI Receivables LLC
Monthly Settlement Report
|
|
|
VII. |
|
RECEIVABLES PERFORMANCE TRIGGERS |
3-Month Delinquency Ratio
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Month |
|
Previous Month |
|
2-Months Ago |
|
3-Month Avg. |
|
Trigger |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
4.00 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Compliance?
|
|
Yes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3-Month Average Loss-to-Liquidation Ratio
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Month |
|
Previous Month |
|
2-Months Ago |
|
3-Month Avg. |
|
Trigger |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
2.25 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Compliance?
|
|
Yes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3-Month Average Dilution Ratio
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Month |
|
Previous Month |
|
2-Months Ago |
|
3-Month Avg. |
|
Trigger |
|
|
|
|
|
|
|
|
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
13.50 |
% |
|
|
|
|
Compliance? |
Yes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchaser Interest |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding Capital |
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Receivables Balance |
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate Reserves |
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchaser Interest |
|
0.00 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Compliance? |
Yes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The undersigned hereby represents and warrants that the foregoing is true and correct as of the
date hereof in accordance with the Receivables Purchase Agreement dated November 27, 2007 (and as
may be amended and otherwise modified from time to time).
|
|
|
|
|
|
|
|
|
|
X.X. Xxxxxx Securities Inc. |
|
|
|
|
HSBC Securities (USA) Inc.
|
|
Page 3 of 3
|
|
HBI Receivables LLC |
EXHIBIT XII
FINANCIAL COVENANT DEFINITIONS
“Administrative Agent” means the Administrative Agent under the Credit Agreement.
“Bridge Loans” has the meaning set forth in the Credit Agreement.
“Business Day” has the meaning set forth in the Credit Agreement.
“Capital Securities” means, with respect to any Person, all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) of such
Person’s capital, whether now outstanding or issued after the Closing Date.
“Capitalized Lease Liabilities” means, with respect to any Person, all monetary
obligations of such Person and its Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, should be classified as capitalized leases, and for purposes of each Loan
Document the amount of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a premium or a penalty.
“Closing Date” means September 5, 2006.
“Contingent Liability” means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness
of any other Person (other than by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the Capital Securities of any other
Person. The amount of any Person’s obligation under any Contingent Liability shall (subject to any
limitation with respect thereto) be deemed to be the outstanding principal amount of the debt,
obligation or other liability guaranteed thereby.
“Credit Agreement” means that certain First Lien Credit Agreement, dated as of
September 5, 2006, among HBI, the lenders from time to time party thereto, the administrative agent
party thereto, the collateral agent party thereto and the other agents party thereto, as in effect
on the date hereof.
“Credit Extension” means, as the context may require,
(a) the making of a Loan by a Lender; or
Exh. XII-1
(b) the issuance of any Letter of Credit, any amendment to or modification of any Letter of
Credit that increases the face amount thereof, or the extension of any Stated Expiry Date of any
existing Letter of Credit, by an Issuer.
“Disposition” (or similar words such as “Dispose”) means any sale, transfer,
lease (as lessor), contribution or other conveyance (including by way of merger) of, or the
granting of options, warrants or other rights to, any of HBI’s or its Subsidiaries’ assets
(including accounts receivable and Capital Securities of Subsidiaries) to any other Person in a
single transaction or series of transactions other than (i) to another Obligor, (ii) by a Foreign
Subsidiary to any other Foreign Subsidiary or (iii) by a Receivables Subsidiary to any other
Person.
“Dollar” and the sign “$” mean lawful money of the United States.
“Dollar Equivalent” means, as of any date of determination, (i) as to any amount
denominated in Dollars, such amount in Dollars, and (ii) as to any amount denominated in Euros, the
equivalent amount thereof in Dollars as determined by the Administrative Agent on the basis of the
Spot Rate for the purchase of Dollars with Euros.
“EBITDA” means, for any applicable period, the sum of
(a) Net Income, plus
(b) to the extent deducted in determining Net Income, the sum of (i) amounts
attributable to amortization (including amortization of goodwill and other intangible
assets), (ii) Federal, state, local and foreign income withholding, franchise, state single
business unitary and similar Tax expense, (iii) Interest Expense, (iv) depreciation of
assets, (v) all non-cash charges, including all non-cash charges associated with announced
restructurings, whether announced previously or in the future (such non-cash restructuring
charges being “Non-Cash Restructuring Charges”), (vi) net cash charges associated
with or related to any contemplated restructurings (such cost restructuring charges being
“Cash Restructuring Charges”) in an aggregate amount not to exceed, in any Fiscal
Year, the Permitted Cash Restructuring Charge Amount for such Fiscal Year, (vii) net cash
restructuring charges associated with or related to the Spin-Off (such cost restructuring
charges being “Cash Spin-Off Charges”) in an aggregate amount not to exceed, in any
Fiscal Year, the Permitted Cash Spin-Off Charge Amount for such Fiscal Year, (viii) all
amounts in respect of extraordinary losses, (ix) non-cash compensation expense, or other
non-cash expenses or charges, arising from the sale of stock, the granting of stock
options, the granting of stock appreciation rights and similar arrangements (including any
repricing, amendment, modification, substitution or change of any such stock, stock option,
stock appreciation rights or similar arrangements), (x) any financial advisory fees,
accounting fees, legal fees and other similar advisory and consulting fees, cash charges in
respect of strategic market reviews, management bonuses and early retirement of
Indebtedness, and related out-of-pocket expenses incurred by HBI or any of its Subsidiaries
as a result of the Transaction, including fees and expenses in connection with the
issuance, redemption or exchange of the
Exh. XII-2
Bridge Loans, all determined in accordance with GAAP, (xi) non-cash or unrealized
losses on agreements with respect to Hedging Obligations and (xii) to the extent
non-recurring and not capitalized, any financial advisory fees, accounting fees, legal fees
and similar advisory and consulting fees and related costs and expenses of HBI and its
Subsidiaries incurred as a result of Permitted Acquisitions, Investments, Dispositions
permitted under the Credit Agreement and the issuance of Capital Securities or Indebtedness
permitted under the Credit Agreement, all determined in accordance with GAAP and in each
case eliminating any increase or decrease in income resulting from non-cash accounting
adjustments made in connection with the related Permitted Acquisition or Dispositions,
(xiii) to the extent the related loss in not added back pursuant to clause (c), all
proceeds of business interruption insurance policies, (xiv) expenses incurred by HBI or any
Subsidiary to the extent reimbursed in cash by a third party, and (xv) extraordinary,
unusual or nonrecurring cash charges not to exceed $10,000,000 in any Fiscal Year, minus
(c) to the extent included in determining such Net Income, the sum of (i) all amounts
in respect of extraordinary gains or extraordinary losses, (ii) non-cash gains on
agreements with respect to Hedging Obligations, (iii) reversals (in whole or in part) of
any restructuring charges previously treated as Non-Cash Restructuring Charges in any prior
period and (iv) non-cash items increasing such Net Income for such period, other than (A)
the accrual of revenue consistent with past practice and (B) the reversal in such period of
an accrual of, or cash reserve for, cash expenses in a prior period, to the extent such
accrual or reserve did not increase EBITDA in a prior period.
“EMU” means Economic and Monetary Union as contemplated in the Treaty on European
Union.
“EMU Legislation” means legislative measures of the European Council (including
European Council regulations) for the introduction of, changeover to or operation of a single or
unified European currency (whether known as the Euro or otherwise), being in part the
implementation of the third stage of EMU.
“European TM SPV” means Playtex Bath LLC, a Delaware limited liability company.
“Euros” means the single currency of Participating Member States of the European
Union.
“Fiscal Quarter” means a quarter ending on the Saturday nearest to the last day of
March, June, September or December.
“Fiscal Year” means any period of fifty-two or fifty-three consecutive calendar weeks
ending on the Saturday nearest to the last day of December, with respect to all periods beginning
on or after July 2, 2006; references to a Fiscal Year with a number corresponding to any calendar
year (e.g., the “2007 Fiscal Year”) refer to the Fiscal Year ending on the Saturday nearest
to the last day of December of such calendar year; provided that in the event that the Company
gives notice to the Administrative Agent that it intends to
Exh. XII-3
change its Fiscal Year, Fiscal Year will mean any period of fifty-two or fifty-three
consecutive calendar weeks or twelve consecutive calendar months ending on the date set forth in
such notice.
“Foreign Subsidiary” means any Subsidiary that is not a U.S. Subsidiary or a
Receivables Subsidiary.
“Foreign Supply Chain Entity” has the meaning set forth in the Credit Agreement.
“GAAP” has the meaning set forth in the Credit Agreement.
“Governmental Authority” means the government of the United States, any other nation
or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.
“HBI” means Hanesbrands Inc., a Maryland corporation.
“Hedging Obligations” means, with respect to any Person, all liabilities of such
Person under foreign exchange contracts, commodity hedging agreements, currency exchange
agreements, interest rate swap agreements, interest rate cap agreements and interest rate collar
agreements, and all other agreements or arrangements designed to protect such Person against
fluctuations in interest rates, currency exchange rates or commodity prices.
“Indebtedness” of any Person means, (i) all obligations of such Person for borrowed
money or advances and all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (ii) all monetary obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker’s acceptances issued for the
account of such Person, (iii) all Capitalized Lease Liabilities of such Person, (iv) for purposes
of Section 8.1.5 of the Credit Agreement only, net Hedging Obligations of such Person, (v) whether
or not so included as liabilities in accordance with GAAP, all obligations of such Person to pay
the deferred purchase price of property or services (excluding trade accounts payable and accrued
expenses in the ordinary course of business which are not overdue for a period of more than 90 days
or, if overdue for more than 90 days, as to which a dispute exists and adequate reserves in
conformity with GAAP have been established on the books of such Person), (vi) indebtedness secured
by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to
be secured by) a Lien on property owned or being acquired by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse (provided that in the
event such indebtedness is limited in recourse solely to the property subject to such Lien, for the
purposes of this Exhibit the amount of such indebtedness shall not exceed the greater of the book
value or the fair market value (as determined in good faith by HBI’s board of directors) of the
property subject to such Lien), (vii) monetary obligations arising under Synthetic Leases, (viii)
the full outstanding balance of trade receivables, notes
Exh. XII-4
or other instruments sold with full recourse (and the portion thereof subject to potential
recourse, if sold with limited recourse), other than in any such case any thereof sold solely for
purposes of collection of delinquent accounts and other than in connection with any Permitted
Securitization, (ix) all obligations (other than intercompany obligations) of such Person pursuant
to any Permitted Securitization (other than Standard Securitization Undertakings), and (x) all
Contingent Liabilities of such Person in respect of any of the foregoing. The Indebtedness of any
Person shall include the Indebtedness of any other Person (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefore as a result of such
Person’s ownership interest in or other relationship with such Person, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefore.
“Interest Coverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio
computed for the period consisting of such Fiscal Quarter and each of the three immediately
preceding Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
to
(b) the sum (for all such Fiscal Quarters) of Interest Expense.
“Interest Expense” means, for any applicable period, the aggregate interest expense
(both, without duplication, when accrued or paid and net of interest income paid during such period
to HBI and its Subsidiaries) of HBI and its Subsidiaries for such applicable period, including the
portion of any payments made in respect of Capitalized Lease Liabilities allocable to interest
expense.
“Investment” means, relative to any Person, (i) any loan, advance or extension of
credit made by such Person to any other Person, including the purchase by such Person of any bonds,
notes, debentures or other debt securities of any other Person, and (ii) any Capital Securities
held by such Person in any other Person. The amount of any Investment shall be the original
principal or capital amount thereof less all returns of principal or equity thereon and shall, if
made by the transfer or exchange of property other than cash, be deemed to have been made in an
original principal or capital amount equal to the fair market value of such property at the time of
such Investment.
“Issuer” has the meaning set forth in the Credit Agreement.
“Lenders” means the various financial institutions and other Persons from time to time
party to the Credit Agreement.
“Letter of Credit” has the meaning set forth in the Credit Agreement.
“Letter of Credit Outstandings” means, on any date, an amount equal to the sum of (i)
the then aggregate amount which is undrawn and available under all issued and outstanding Letters
of Credit, and (ii) the then aggregate amount of all unpaid and outstanding Reimbursement
Obligations.
Exh. XII-5
“Leverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio of
(a) Total Debt outstanding on the last day of such Fiscal Quarter
to
(b) EBITDA computed for the period consisting of such Fiscal Quarter and each of the
three immediately preceding Fiscal Quarters.
“Lien” means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in
property, or other priority or preferential arrangement of any kind or nature whatsoever.
“Loan Documents” has the meaning set forth in the Credit Agreement.
“Loans” has the meaning set forth in the Credit Agreement.
“Net Income” means, for any period, the aggregate of all amounts which would be
included as net income on the consolidated financial statements of HBI and its Subsidiaries for
such period; provided that, for purposes of this Exhibit, the calculation of Net Income shall not
include any net income of any Foreign Supply Chain Entity, except to the extent cash is distributed
by such Foreign Supply Chain Entity during such period to HBI or any other Subsidiary as a dividend
or other distribution.
“Non-Cash Restructuring Charges” is defined in the definition of “EBITDA”.
“Obligor” has the meaning set forth in the Credit Agreement.
“Participating Member State” means each country so described in any EMU Legislation.
“Permitted Acquisition” has the meaning set forth in the Credit Agreement..
“Permitted Cash Restructuring Charge Amount” means, $120,000,000 in the aggregate for
Fiscal Year 2006 and all Fiscal Years ending after the Closing Date.
“Permitted Cash Spin-Off Charge Amount” means, for any Fiscal Year set forth below,
the amount set forth opposite such Fiscal Year:
|
|
|
|
|
Fiscal Year |
|
Cash Amount |
|
2006 |
|
$ |
20,000,000 |
|
2007 |
|
$ |
55,000,000 |
|
Exh. XII-6
“Permitted Securitization” has the meaning set forth in the Credit Agreement.
“Person” means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization, Governmental
Authority or any other legal entity, whether acting in an individual, fiduciary or other capacity.
“Receivable” shall mean a right to receive payment arising from a sale or lease of
goods or the performance of services by a Person pursuant to an arrangement with another Person
pursuant to which such other Person is obligated to pay for good or services under terms that
permit the purchase of such goods and services on credit and shall include, in any event, any items
of property that would be classified as an “account,” “chattel paper,” “payment intangible” or
“instrument” under the UCC and any supporting obligations.
“Receivables Subsidiary” has the meaning set forth in the Credit Agreement.
“Reimbursement Obligation” has the meaning set forth in the Credit Agreement.
“Revaluation Date” has the meaning set forth in the Credit Agreement.
“Spin-Off” has the meaning set forth in the Credit Agreement.
“Spot Rate” means the rate determined by the Administrative Agent to be the rate
quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of
such currency with another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. (in the applicable time zone) on the date two Business Days prior to the
date as of which the foreign exchange computation is made; provided that the Administrative
Agent may obtain such spot rate from another financial institution designated by the Administrative
Agent if the Person acting in such capacity does not have as of the date of determination a spot
buying rate for any such currency.
“Standard Securitization Undertakings” shall mean representations, warranties,
covenants and indemnities entered into by HBI or any Subsidiary which are reasonably customary in a
securitization of Receivables.
“Stated Expiry Date” has the meaning set forth in the Credit Agreement.
“Subsidiary” means, with respect to any Person, any other Person of which more than
50% of the outstanding Voting Securities of such other Person (irrespective of whether at the time
Capital Securities of any other class or classes of such other Person shall or might have voting
power upon the occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more other Subsidiaries of such Person, or by
one or more other Subsidiaries of such Person. Unless the context otherwise specifically requires,
the term “Subsidiary” shall be a reference to a Subsidiary of HBI (other than a Receivables
Subsidiary). No Foreign Supply Chain Entity shall be considered to be a Subsidiary of HBI or any
Subsidiary for purposes hereof except
Exh. XII-7
as set forth in the definition of Foreign Supply Chain Entity. Further, the European TM SPV
shall not be considered to be a Subsidiary for any purpose hereunder.
“Synthetic Lease” means, as applied to any Person, any lease (including leases that
may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (i)
that is not a capital lease in accordance with GAAP and (ii) in respect of which the lessee retains
or obtains ownership of the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.
“Taxes” means all income, stamp or other taxes, duties, levies, imposts, charges,
assessments, fees, deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, and all interest, penalties or similar
liabilities with respect thereto.
“Total Debt” means, on any date, the outstanding principal amount of all Indebtedness
of HBI and its Subsidiaries (other than a Receivables Subsidiary) of the type referred to in clause
(i) of the definition of “Indebtedness” (which, in the case of the Loans, shall be deemed
to equal the Dollar Equivalent (determined as of the most recent Revaluation Date) for any Loans
denominated in Euros), clause (ii) of the definition of “Indebtedness” (which, in the case
of Letter of Credit Outstandings, shall be deemed to equal the Dollar Equivalent (determined as of
the most recent Revaluation Date) for any Letter of Credit Outstandings denominated in Euros),
clause (iii) of the definition of “Indebtedness” and clause (vii) of the definition of
“Indebtedness”, in each case exclusive of intercompany Indebtedness between HBI and its
Subsidiaries and any Contingent Liability in respect of any of the foregoing.
“Transaction” has the meaning set forth in the Credit Agreement.
“Treaty on European Union” means the Treaty of Rome of March 25, 1957, as amended by
the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was assigned at Maastricht, the
Kingdom of Netherlands, on February 1, 1992 and came into force on November 1, 1993), as amended
from time to time.
“UCC” has the meaning set forth in the Credit Agreement.
“United States” or “U.S.” means the United States of America, its fifty states
and the District of Columbia.
“U.S. Subsidiary” means any Subsidiary (other than a Receivables Subsidiary) that is
incorporated or organized under the laws of the United States.
“Voting Securities” means, with respect to any Person, Capital Securities of any class
or kind ordinarily having the power to vote for the election of directors, managers or other voting
members of the governing body of such Person.
Exh. XII-8
EXHIBIT XIII
FORM OF DAILY REPORT
(Attached.)
Exh. XIII-1
HBI
Receivables LLC
Daily Settlement Report
Report as of:
Daily Period:
|
|
|
|
|
I. RECEIVABLES AGING SCHEDULE |
|
|
|
|
Total Agings |
|
|
|
|
Current |
|
|
0 |
|
1-30 dpd |
|
|
0 |
|
31-60 dpd |
|
|
0 |
|
61-90 dpd |
|
|
0 |
|
91+ dpd |
|
|
0 |
|
Credit Memos and Unapplied Cash |
|
|
0 |
|
Total Receivables Balance |
|
|
0 |
|
|
|
|
|
|
II. ELIGIBLE RECEIVABLES |
|
|
|
|
Per Most Recent Monthly Report: |
|
|
|
|
Total Receivables Balance |
|
|
0 |
|
Eligible Receivables Balance |
|
|
0 |
|
Ineligible Receivables |
|
|
0 |
|
Ineligible Receivables Percentage |
|
|
0.00 |
% |
|
|
|
|
|
Per This Daily Report: |
|
|
|
|
Total Receivables Balance |
|
|
0 |
|
Ineligible Receivables Percentage (calculated above) |
|
|
0.00 |
% |
Eligible Receivables Balance |
|
|
0 |
|
|
|
|
|
|
III. OBLIGOR CONCENTRATION LIMITS |
|
|
|
|
Per Most Recent Monthly Report: |
|
|
|
|
Eligible Receivables Balance |
|
|
0 |
|
Excess Obligor Concentrations |
|
|
0 |
|
Excess Other Concentrations |
|
|
0 |
|
Excess Concentration Percentage |
|
|
0.00 |
% |
|
|
|
|
|
Per This Daily Report: |
|
|
|
|
Eligible Receivables Balance |
|
|
0 |
|
Excess Concentration Percentage (calculated above) |
|
|
0.00 |
% |
Excess Concentrations |
|
|
0 |
|
|
|
|
|
|
IV. FUNDING AVAILABILITY |
|
|
|
|
Eligible Receivables Balance |
|
|
0 |
|
• Excess Concentrations |
|
|
0 |
|
Net Receivables Balance |
|
|
0 |
|
|
|
|
|
|
• Loss Reserve Percentage per last Monthly Report |
|
|
0.00 |
% |
• Dilution Reserve Percentage per last Monthly Report |
|
|
0.00 |
% |
•Yield & Servicing Reserves per last Monthly Report |
|
|
0.00 |
% |
Total Reserve Requirement |
|
|
0 |
|
|
|
|
|
|
Available Funding Amount |
|
|
0 |
|
|
|
|
|
|
V. INCREASE / DECREASE IN CAPITAL |
|
|
|
|
Maximum Funding Amount |
|
|
250,000 |
|
Amount Available for Funding Under the Facility |
|
|
0 |
|
Beginning Capital Outstanding |
|
|
0 |
|
Remaining Available Capital |
|
|
0 |
|
Required Capital Paydown |
|
|
0 |
|
Requested Increase / Purchase Amount |
|
|
0 |
|
Required / Optional Repayment (min. equals Required Paydown) |
|
|
0 |
|
Ending Capital Outstanding |
|
|
0 |
|
|
|
|
|
|
VI. COMPLIANCE |
|
|
|
|
|
|
|
|
|
Purchaser Interest |
|
|
|
|
Outstanding Capital |
|
|
0 |
|
Net Receivables Balance |
|
|
0 |
|
Aggregate Reserves |
|
|
0 |
|
Purchaser Interest |
|
|
0.00 |
% |
Compliance? |
Yes |
|
The undersigned hereby represents and warrants
that the foregoing is true and correct as of
the date hereof in accordance with the
Receivables Purchase Agreement dated November
27, 2007 (and as may be amended and otherwise
modified from time to time).
|
|
|
|
|
|
|
|
|
|
X.X. Xxxxxx Securities Inc. |
|
|
|
|
HSBC Securities (USA) Inc.
|
|
Page 1 of 1
|
|
HBI Receivables LLC |
SCHEDULE A
PURCHASE GROUPS; COMMITMENTS; GROUP PURCHASE LIMITS
|
|
|
|
|
HSBC Purchase Group |
|
|
|
|
|
|
|
|
|
Group Purchase Limit:
|
|
$125,000,000 |
|
|
|
|
|
|
Managing Agent:
|
|
HSBC Securities (USA) Inc.
|
|
|
|
|
|
Conduit Purchaser:
|
|
Bryant Park Funding LLC
|
|
|
|
|
|
Committed Purchaser:
|
|
HSBC Bank USA, National Association
|
Commitment:
|
|
$ 125,000,000 |
|
|
|
|
|
|
JPMorgan Purchase Group |
|
|
|
|
|
|
|
|
|
Group Purchase Limit:
|
|
$ 125,000,000 |
|
|
|
|
|
|
Managing Agent:
|
|
JPMorgan Chase Bank, N.A.
|
|
|
|
|
|
Conduit Purchaser:
|
|
Falcon Asset Securitization Company LLC
|
|
|
|
|
|
Committed Purchaser:
|
|
JPMorgan Chase Bank, N.A.
|
Commitment:
|
|
$ 125,000,000 |
|
SCHEDULE B
LIST OF CLOSING DOCUMENTS
(Attached.)
Schedule B to Receivables Purchase Agreement
Schedule A to Receivbles Sale Agreement
RECEIVABLES PURCHASE FACILITY
among
HANESBRANDS INC.,
as Originator and Servicer,
HBI RECEIVABLES LLC,
as Seller,
THE COMMITTED PURCHASERS PARTY THERETO,
THE CONDUCT PURCHASERS PARTY THERETO,
THE MANAGING AGENTS PARTY THERETO,
and
JPMORGAN CHASE BANK, N.A.,
as Agent
November 27, 2007
LIST OF CLOSING DOCUMENTS
|
|
|
|
|
|
|
|
|
|
|
|
DOCUMENT |
|
|
|
|
|
A. |
|
SELLER DOCUMENTATION |
|
|
|
|
|
1. |
|
Receivables Purchase
Agreement among HBI Receivables LLC (the “Seller”),
Hanesbrands Inc. (the “Company”), as Servicer, JPMorgan Chase Bank, N.A.
(“JPMorgan”), as a Committed Purchaser and as a Managing Agent, HSBC Bank
USA, National Association (“HSBC”), as a Committed Purchaser, HSBC
Securities (USA) Inc., as a Managing Agent, Falcon Asset Securitization
Company LLC, as a Conduct Purchaser, Bryant Park Funding LLC, as a
Conduct Purchaser and JPMorgan as agent for the “Purchasers” thereunder
(together with its successors and assigns the “Agent”). |
|
|
|
|
|
|
|
Exhibit I
|
|
Definitions |
|
|
|
|
|
|
|
Exhibit II
|
|
Form of Purchase Notice |
|
|
|
|
|
|
|
Exhibit III
|
|
Places of Business of the Seller Parties; Location(s) of
Records; Federal Employer Identification Number(s) |
|
|
|
|
|
|
|
Exhibit IV
|
|
Form of Reduction Notice |
|
|
|
|
|
|
|
Exhibit V
|
|
Form of Compliance Certificate |
|
|
|
|
|
|
|
Exhibit VI
|
|
Form of Collection Account Agreement |
|
|
|
|
|
|
|
Exhibit VII
|
|
Form of Assignment Agreement |
|
|
|
|
|
|
|
Exhibit VIII
|
|
Credit and Collection Policy |
|
|
|
|
|
|
|
Exhibit IX
|
|
Form of Contract(s) |
|
|
|
|
|
|
|
Exhibit X
|
|
Form of Weekly Report |
|
|
|
|
|
|
|
Exhibit XI
|
|
Form of Settlement Report |
|
|
|
|
|
|
|
Exhibit XII
|
|
Financial Covenant Definitions |
|
|
|
|
|
|
|
Exhibit XIII
|
|
Form of Daily Report |
|
|
|
|
|
|
|
Schedule A
|
|
Commitments |
|
|
|
|
|
|
|
Schedule B
|
|
Closing Documents |
|
|
|
|
|
|
|
Schedule C
|
|
Special Concentration Limits |
2
|
|
|
|
|
|
|
DOCUMENT |
|
|
|
|
|
|
|
Schedule D
|
|
Calendar Months |
|
|
|
|
|
2. |
|
Good Standing Certificates issued in respect of the Seller by the
Secretary of State of North Carolina. (Post Closing) |
|
|
|
|
|
3. |
|
Certificate of the Secretary of the Seller certifying (i) a copy of the
Certificate of Formation of the Seller (attached thereto), (ii) a copy of
the Limited Liability Company Agreement of the Seller (attached thereto),
(iii) a copy of the resolutions of the Board of Directors of the Seller
(attached thereto) authorizing the execution, delivery and performance of
each Transaction Document to which the Seller is party, (iv) the names
and signatures of the officers authorized on its behalf to execute each
Transaction Document to which the Seller is party and (v) a good standing
certificate issued in respect of the Seller by the Secretary of State of
the State of Delaware. |
|
|
|
|
|
B. |
|
COMPANY DOCUMENTATION |
|
|
|
|
|
4. |
|
Receivables Sale Agreement between the Company, as originator, and
Seller, as buyer. |
|
|
|
|
|
|
|
Exhibit I
|
|
Definitions |
|
|
|
|
|
|
|
Exhibit II
|
|
Chief Executive Office; Places of Business; Locations of
Records; Federal Employer Identification Number(s); Other Names (s) |
|
|
|
|
|
|
|
Exhibit III
|
|
Reserved |
|
|
|
|
|
|
|
Exhibit IV
|
|
Form of Compliance Certificate |
|
|
|
|
|
|
|
Exhibit V
|
|
Credit and Collection Policy |
|
|
|
|
|
|
|
Exhibit VI
|
|
Form of Subordinated Note |
|
|
|
|
|
|
|
Schedule A
|
|
List of Documents to be Delivered to Buyer Prior to the
Purchase |
|
|
|
|
|
5. |
|
Certificate of the Secretary of the Company certifying (i) a copy of the
Articles of Incorporation of the Company (attached thereto), (ii) a copy
of the Bylaws of the Company (attached thereto), (iii) a copy of the
resolutions of the Board of Directors of the Company (attached thereto)
authorizing the execution, delivery and performance of each Transaction
Document to which the Company is party, (iv) the names and signatures of
the officers authorized on its behalf to execute each Transaction
Document to which the Company is party and (v) good standing certificates
for the Company issued by the Department of Assessments and Taxation of
the State of Maryland and the Secretary of State of the State of North
Carolina. |
|
|
|
|
|
C. |
|
UCC DOCUMENTATION |
|
|
|
|
|
6. |
|
UCC Lien Search Report in respect of filings made against the Seller in
the office of the Secretary of State of the State of Delaware. |
|
|
|
|
|
7. |
|
UCC Lien Search Reports in respect of filings made against the Company in
the office of the |
|
|
|
|
|
3
|
|
|
|
|
|
|
DOCUMENT |
|
|
|
|
|
|
|
Maryland Department of Assessments and Taxation. |
|
|
|
|
|
8. |
|
Tax Lien and Judgment Search Reports in respect of filings made against
the Company in the offices of North Carolina Secretary of State, (ii)
Forsyth County Superior Court Clerk. |
|
|
|
|
|
9. |
|
UCC-1 Financing Statement naming the Seller as debtor and the Agent as
secured party filed in the office of the Secretary of State of the State
of Delaware. |
|
|
|
|
|
10. |
|
UCC-1 Financing Statement naming the Company as debtor/seller, the Seller
as secured party/buyer/assignor and the Agent as assignee of the secured
party/buyer/assignor filed in the office of the Department of Assessments
and Taxation of the State of Maryland. |
|
|
|
|
|
11. |
|
UCC-3 Financing Statements related to Credit Agreements (2). |
|
|
|
|
|
12. |
|
Post-filing UCC Lien Search reports in respect of the filings listed in
the immediately preceding two items. (Post Closing) |
|
|
|
|
|
D. |
|
OPINION LETTERS |
|
|
|
|
|
13. |
|
Opinion of Xxxxxxxx & Xxxxx LLP, counsel for the Seller and the Company,
regarding corporate matters, enforceability and non-contravention of
material agreements, New York law and the law of the United States of
America. |
|
|
|
|
|
14. |
|
Opinion of Xxxxxxxx & Xxxxx LLP, counsel for the Seller and the Company,
regarding creation of security interests under New York law and
perfection under Delaware law. |
|
|
|
|
|
15. |
|
Opinion of Xxxxxxxx
& Xxxxx LLP, counsel for the Seller and the Company, regarding “true sale” and “substantive nonconsolidation” issues. |
|
|
|
|
|
16. |
|
Opinion of Venable LLC, special Maryland counsel, regarding, among other
things, corporate matters and perfection of security interests under
Maryland law. |
|
|
|
|
|
E. |
|
MISCELLANEOUS |
|
|
|
|
|
17. |
|
Fee Letter among the Seller, the Managing Agents and the Agent. |
|
|
|
|
|
18. |
|
Subordinated Note made by Seller in favor of the Company. |
|
|
|
|
|
19. |
|
Blocked Account Control Agreement among the Seller, the Agent and
JPMorgan, as Depositary. |
|
|
|
|
|
20. |
|
Asset Purchase Agreement between Falcon Asset Securitization Company LLC
and JPMorgan. |
|
|
|
|
|
21. |
|
Liquidity Asset Purchase Agreement between Bryant Park Funding LLC and
HSBC. |
|
|
|
|
|
22. |
|
Settlement Report for the month prior to the closing date. |
|
|
|
|
|
23. |
|
Agent Authorized Signer Form |
4
|
|
|
|
|
|
|
DOCUMENT |
|
|
|
|
|
24. |
|
Collateral Release Agreement (First Lien Credit Agreement) among the
Company, the Seller, JPMorgan, Citicorp USA, Inc., as administrative
agent and Citibank, N.A., as collateral agent. |
|
|
|
|
|
25. |
|
Collateral Release Agreement (Second Lien Credit Agreement) among the
Company, HBI Branded Apparel Limited, Inc., the Seller, JPMorgan,
Citicorp USA, Inc., as administrative agent, and Citibank, N.A., as
collateral agent. |
5
SCHEDULE C
SPECIAL CONCENTRATION PERCENTAGES
|
|
|
Obligor Name |
|
Special Concentration Percentage |
|
|
|
[****]
|
|
At any time, [****] of the sum of the Loss Reserve Floor
and the Dilution Reserve Floor at such time |
|
|
|
[****]
|
|
At any time, [****] of the sum of the Loss Reserve Floor and
the Dilution Reserve Floor at such time |
|
|
|
[****]
|
|
At any time, [****] of the Loss Reserve Floor at such time |
|
|
|
[****]
|
|
At any time, [****] of the Loss Reserve Floor at such time |
|
|
|
[****]
|
|
At any time, [****] of the Loss Reserve Floor at such time |
|
|
|
[****]
|
|
At any time, [****] of the Loss Reserve Floor at such time |
|
|
|
[****]
|
|
(i) At any time that such Obligor’s long-term unsecured
debt ratings are at least BBB- by S&P and Baa3 by
Xxxxx’x, [****] of the Loss Reserve Floor at such time; and |
|
|
|
|
|
(ii) At any other time, [****] of the Loss Reserve Floor
at such time |
**** Omitted pursuant to a confidential treatment request
SCHEDULE D
CALENDAR MONTHS
(Attached.)
Calendar Year 2007
52 Weeks Ending 12/29/2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 1 - JANUARY |
|
PERIOD 2 - FEBRUARY |
|
PERIOD 3 - MARCH |
12/31/2006 - 02/03/2007 |
|
02/04/2007 - 03/03/2007 |
|
03/04/2007 - 03/31/2007 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
31
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
7
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
14
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
21
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
28
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 4 - APRIL |
|
PERIOD 5 - MAY |
|
PERIOD 6 - JUNE |
04/01/2007 - 05/05/2007 |
|
05/06/2007 - 06/02/2007 |
|
6/03/2007 - 06/30/2007 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Web
|
|
Thu
|
|
Fri
|
|
Sat
|
1
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
8
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
15
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
22
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
29
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 7 - JULY |
|
PERIOD 8 - AUGUST |
|
PERIOD 9 - SEPTEMBER |
07/01/2007 - 08/04/2007 |
|
08/05/2007 - 09/01/2007 |
|
09/02/2007 - 09/29/2007 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
1
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
8
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
15
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
22
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
29
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 10 - OCTOBER |
|
PERIOD 11 - NOVEMBER |
|
PERIOD 12 - DECEMBER |
09/30/2007 - 11/03/2007 |
|
11/04/2007 - 12/01/2007 |
|
12/02/2007 - 12/29/2007 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
30
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
7
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
14
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
21
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
1 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
28
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LEGEND
Calendar Year 2008
53 Weeks Ending 1/3/2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 1 - JANUARY |
|
PERIOD 2 - FEBRUARY |
|
PERIOD 3 - MARCH |
12/30/2007 - 02/02/2008 |
|
02/03/2008 - 03/01/2008 |
|
03/02/2008 - 03/29/2008 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
30
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
6
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
11 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
13
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
20
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
1 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
27
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 4 - APRIL |
|
PERIOD 5 - MAY |
|
PERIOD 6 - JUNE |
03/30/2008 - 05/03/2008 |
|
05/04/2008 - 05/31/2008 |
|
6/01/2008 - 06/28/2008 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Web
|
|
Thu
|
|
Fri
|
|
Sat
|
30
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
6
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
13
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
20
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
27
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 7 - JULY |
|
PERIOD 8 - AUGUST |
|
PERIOD 9 - SEPTEMBER |
06/29/2008 - 08/02/2008 |
|
08/03/20008 - 08/30/2008 |
|
08/31/2008 - 9/27/2008 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
29
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
6
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
13
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
20
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
27
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 10 - OCTOBER |
|
PERIOD 11 - NOVEMBER |
|
PERIOD 12 - DECEMBER |
09/28/2008 - 11/01/2008 |
|
11/02/2008 - 11/29/2008 |
|
11/30/2008 - 1/3/2009 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
28
|
|
|
29 |
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
5
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
12
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
19
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
26
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
LEGEND
Calendar Year 2009
52 Weeks Ending 01/02/2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 1 - JANUARY |
|
PERIOD 2 - FEBRUARY |
|
PERIOD 3 - MARCH |
1/04/2009 - 02/07/2009 |
|
02/08/2009 - 03/07/2009 |
|
03/08/2009 - 04/04/2009 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
4
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
13 |
|
|
|
13 |
|
|
|
14 |
|
11
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
18
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
25
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
1
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 4 - APRIL |
|
PERIOD 5 - MAY |
|
PERIOD 6 - JUNE |
04/05/2009 - 05/09/2009 |
|
05/10/2009 - 06/06/2009 |
|
06/07/2009 - 07/04/2009 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Web
|
|
Thu
|
|
Fri
|
|
Sat
|
5
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
12
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
19
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
26
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
3
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 7 - JULY |
|
PERIOD 8 - AUGUST |
|
PERIOD 9 - SEPTEMBER |
07/05/2009 - 08/08/2009 |
|
08/09/20009 - 09/05/2009 |
|
09/06/2009 - 10/03/2009 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
5
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
12
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
19
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
26
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
2
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 10 - OCTOBER |
|
PERIOD 11 - NOVEMBER |
|
PERIOD 12 - DECEMBER |
10/04/2009 - 11/07/2009 |
|
11/08/2009 - 12/05/2009 |
|
12/06/2009 - 01/02/2010 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
4
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
11
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
18
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
25
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
29 |
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
1
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Calendar Year 2010
52 Weeks Ending 01/01/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 1 - JANUARY |
|
PERIOD 2 - FEBRUARY |
|
PERIOD 3 - MARCH |
1/03/2010 - 02/06/2010 |
|
02/07/2010 - 03/06/2010 |
|
03/07/2010 - 04/03/2010 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
3
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
10
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
17
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
24
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
28 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
31
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 4 - APRIL |
|
PERIOD 5 - MAY |
|
PERIOD 6 - JUNE |
04/04/2010 - 05/08/2010 |
|
05/09/2010 - 06/05/2010 |
|
06/06/2010 - 07/03/2010 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Web
|
|
Thu
|
|
Fri
|
|
Sat
|
4
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
11
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
18
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
25
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
1 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
2
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 7 - JULY |
|
PERIOD 8 - AUGUST |
|
PERIOD 9 - SEPTEMBER |
07/04/2010 - 08/07/2010 |
|
08/08/20010 - 09/04/2010 |
|
09/05/2010 - 10/02/2010 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
4
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
11
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
18
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
25
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
1
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERIOD 10 - OCTOBER |
|
PERIOD 11 - NOVEMBER |
|
PERIOD 12 - DECEMBER |
10/03/20010- 11/06/2010 |
|
11/07/2010 - 12/04/2010 |
|
12/05/2010 - 01/01/2011 |
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
|
Sun
|
|
Mon
|
|
Tue
|
|
Wed
|
|
Thu
|
|
Fri
|
|
Sat
|
3
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 |
|
|
|
8 |
|
|
|
9 |
|
|
|
10 |
|
|
|
11 |
|
10
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
17 |
|
|
|
18 |
|
17
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 |
|
|
|
24 |
|
|
|
25 |
|
24
|
|
|
25 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
26 |
|
|
|
27 |
|
|
|
28 |
|
|
|
29 |
|
|
|
30 |
|
|
|
31 |
|
|
|
1 |
|
31
|
|
|
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|