[Exhibit 10.7]
U.S. $200,000,000
PARALLEL PURCHASE COMMITMENT
Dated as of September 30, 1998
Among
WARNACO OPERATIONS CORPORATION
as the Seller
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS
as the Banks
and
XXXXXXX STREET, INC.
as the Initial Servicer
and
THE BANK OF NOVA SCOTIA
as the Agent
TABLE OF CONTENTS
PAGE
----
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 1.1. Commitment.................................................................................1
SECTION 1.2. Making Purchases...........................................................................2
SECTION 1.3. Incorporation by Reference.................................................................3
SECTION 1.4. Settlement Procedures......................................................................3
SECTION 1.5. Fees.......................................................................................7
SECTIONS 1.6. through 1.8 Incorporation by Reference....................................................7
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
EVENTS OF TERMINATION
SECTION 2.1. Representations and Warranties; Covenants..................................................7
SECTION 2.2. Termination Events.........................................................................7
ARTICLE III.
INDEMNIFICATION
SECTIONS 3.1. through 3.2. Incorporation by Reference...................................................7
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
SECTION 4.1. Appointment of the Servicer................................................................8
SECTION 4.2. Duties of the Servicer.....................................................................8
SECTIONS 4.3. through 4.4. Incorporation by Reference....................................................9
SECTION 4.5. Responsibilities of the Seller.............................................................9
SECTION 4.6. Servicing Fee..............................................................................9
-ii-
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
ARTICLE V.
THE AGENT
SECTION 5.1. Appointment and Authorization.............................................................10
SECTION 5.2. Delegation of Duties......................................................................10
SECTION 5.3. Liability of Agent........................................................................10
SECTION 5.4. Reliance by Agent.........................................................................11
SECTION 5.5. Notice of Termination Events..............................................................11
SECTION 5.6. Credit Decision...........................................................................11
SECTION 5.7. Indemnification...........................................................................12
SECTION 5.8. Agent in Individual Capacity..............................................................12
SECTION 5.9. Successor Agent...........................................................................13
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1. Amendments, Etc...........................................................................13
SECTION 6.2. Notices, Etc..............................................................................13
SECTION 6.3. Assignability.............................................................................14
SECTION 6.4. Costs, Expenses and Taxes.................................................................14
SECTION 6.5. Governing Law and Jurisdiction............................................................15
SECTION 6.6. Execution in Counterparts.................................................................15
SECTION 6.7. Termination...............................................................................15
SECTION 6.8. WAIVER OF JURY TRIAL......................................................................15
SECTION 6.9. Entire Agreement..........................................................................16
SECTION 6.10. Headings..................................................................................16
-iii-
EXHIBITS
EXHIBIT I Definitions
EXHIBIT II Conditions of Purchases
EXHIBIT III Representations and Warranties***
EXHIBIT IV Covenants***
EXHIBIT V Termination Event***
SCHEDULE I Credit and Collection Policy***
SCHEDULE II Trade Names***
SCHEDULE III Special Concentration Percentages***
SCHEDULE IV Fiscal Months***
ANNEX A Form of Monthly Report***
ANNEX B Form of Purchase Notice
--------
*** Incorporated by reference from Receivables Purchase Agreement.
-iv-
PARALLEL PURCHASE COMMITMENT
Dated as of September 30, 1998
This Parallel Purchase Commitment (as amended, supplemented or
otherwise modified from time to time, this "Agreement") is entered into as of
September 30, 1998 among Warnaco Operations Corporation, a Delaware corporation
(the "Seller"), Xxxxxxx Street, Inc., a Delaware corporation ("Xxxxxxx"), as
initial Servicer (in such capacity, together with its successors and permitted
assigns in such capacity, the "Servicer"), The Bank of Nova Scotia, a Canadian
chartered bank acting through its New York branch ("BNS"), as agent for the
Banks (in such capacity together with its successors and assigns in such
capacity, the "Agent"), and the various other financial institutions as are or
may become parties hereto (collectively, the "Banks"), agree as follows:
PRELIMINARY STATEMENTS. Certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I. References in the Exhibits
hereto to "the Agreement" refer to this Agreement, as amended, modified or
supplemented and in effect from time to time.
The Seller has Pool Receivables in which it is prepared to sell,
transfer and assign an undivided variable percentage ownership interest
(referred to herein as the "Purchased Interest"). The Banks are prepared to make
purchases from time to time with respect to such Purchased Interest on the terms
set forth herein. Accordingly, the parties agree as follows:
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 1.1. Commitment. (a) On the terms and conditions hereinafter
set forth, the Banks shall purchase, ratably in accordance with their respective
Percentages, and make reinvestments in, ownership interests with regard to the
Purchased Interest from the Seller from time to time during the period from the
date hereof to the Commitment Termination Date. Under no circumstances shall the
Banks be obligated to make any such purchase or reinvestment (i) if, after
giving effect to such purchase or reinvestment, the aggregate outstanding
Capital of the Purchased Interest, together with the aggregate outstanding
"Capital" of the "Purchased Interests" purchased by the Investors under the
Receivables Purchase Agreement (the "Total Outstanding Capital"), would exceed
the Total Commitment, or (ii) the aggregate outstanding Capital of the Purchased
Interest purchased by any Bank together with the outstanding "Capital" of the
"Purchased Interests" purchased under the Receivables Purchase Agreement by such
Bank's Related Conduit Purchaser would exceed such Bank's Percentage of the
Total Outstanding Capital.
(b) The Seller may, upon at least 30 days' written notice to the Agent,
terminate in whole or reduce in part the unused portion of the Total Commitment;
provided that each partial reduction shall be in the amount of at least
$10,000,000 or an integral multiple of $5,000,000 in excess thereof
and that, unless terminated in whole, the Total Commitment shall in no event be
reduced below $100,000,000.
SECTION 1.2. Making Purchases. (a) Each purchase (but not reinvestment)
of undivided percentage ownership interests with regard to the Purchased
Interest hereunder shall be made upon the Seller's irrevocable written notice in
the form of Annex B delivered to the Agent in accordance with Section 6.2 (which
notice must be received by the Agent before 11:00 a.m., New York City time).
Each such notice of a purchase shall specify (i) the amount requested to be paid
to the Seller (such amount, which shall not be less than $2,000,000, being the
"Capital" relating to the undivided ownership interest then being purchased, and
(ii) the date of such purchase (which shall be a Business Day). Such notice of
purchase shall be sent by telecopier, telex or cable to all Banks concurrently
and shall specify the date of such purchase, each Bank's Percentage multiplied
by the aggregate amount of Capital of undivided ownership interest of the
Purchased Interest being purchased and whether Discount for such undivided
ownership interest of the Purchased Interest is calculated based on the
Eurodollar Rate (which may be selected only if such notice is given at least two
Business Days prior to the purchase date) or the Base Rate.
(b) Prior to 12:00 noon New York City time, on the date of each such
purchase of an undivided ownership interest in the Purchased Interest, the
Banks, ratably in accordance with their respective Percentages, shall, upon
satisfaction of the applicable conditions set forth in Exhibit II hereto, make
available to the Agent the amount of their respective purchases by deposit of
the applicable amount in immediately available funds to the Agent's Account and,
after receipt by the Agent of such funds, the Agent will cause such funds to be
made available to the Seller in same day funds at Citibank, N.A., account
#4077-4094, ABA #021-00-0089.
(c) Effective on the date of each purchase pursuant to this Section 1.2
and each reinvestment pursuant to Section 1.4, the Seller hereby sells and
assigns to the Agent, for the benefit of the Banks, an undivided percentage
ownership interest, to the extent of the Purchased Interest then in effect, in:
(i) each Pool Receivable then existing, (ii) all Related Security with respect
to such Pool Receivables, and (iii) all Collections with respect to, and other
proceeds of, such Pool Receivables and Related Security.
(d) To secure all of the Seller's obligations (monetary or otherwise)
under this Agreement and the other Transaction Documents to which it is a party,
whether now or hereafter existing or arising, due or to become due, direct or
indirect, absolute or contingent, the Seller hereby grants to the Agent, for the
benefit of the Banks, a security interest in all of the Seller's right, title
and interest (including any undivided interest of the Seller) in, to and under
all of the following, whether now or hereafter owned, existing or arising: (i)
all Pool Receivables, (ii) all Related Security with respect to such Pool
Receivables, (iii) all Collections with respect to such Pool Receivables, (iv)
the Collection Account and all amounts on deposit therein, and all certificates
and instruments, if any, from time to time evidencing the Collection Account and
amounts on deposit therein, (v) all rights (but none of the obligations) of the
Seller under the Xxxxxxx Xxxx Agreement, and (vi) all proceeds of, and all
amounts received or receivable under any or all of, the foregoing (collectively,
the "Pool Assets"). Upon the sale of a Defaulted Receivable by the Servicer as
permitted by Section 1(e) of Exhibit IV,
-2-
the security interest of the Agent in such Defaulted Receivable shall
automatically be released and the Agent shall take such actions as may be
reasonably requested by the purchaser of such Defaulted Receivable to evidence
such release. The Agent, for the benefit of the Banks, shall have, with respect
to the Pool Assets, and in addition to all the other rights and remedies
available to the Agent and the Banks hereunder, all the rights and remedies of a
secured party under any applicable UCC.
(e) Each Bank's obligation shall be several, such that the failure of
any Bank to make available to the Seller any funds in connection with any
purchase shall not relieve any other Bank of its obligation, if any, hereunder
to make funds available on the date of such purchase, but no Bank shall be
responsible for the failure of any other Bank to make funds available in
connection with any purchase.
SECTION 1.3. Incorporation by Reference. Section 1.3 of the Receivables
Purchase Agreement is hereby incorporated herein by this reference, except that
each reference therein to an "Investor," the "Investors" or the "Facility
Termination Date" shall be deemed to be a reference to a Bank, the Banks and the
Commitment Termination Date, respectively.
SECTION 1.4. Settlement Procedures. (a) The collection of the Pool
Receivables shall be administered by the Servicer in accordance with this
Agreement. The Seller shall provide to the Servicer on a timely basis all
information needed for such administration, including notice of the occurrence
of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool
Receivables are received (or deemed received in accordance with Section 1.4(e))
by the Seller or Servicer, transfer such Collections into the Collection
Account. With respect to such Collections on such day, the Servicer shall:
(i) set aside in the Collection Account for the benefit of
each Bank, out of such Bank's Share of the percentage of such
Collections represented by the Purchased Interest, first an amount
equal to such Bank's Share of the Discount accrued through such day for
each Portion of Capital of such Purchased Interest and not previously
set aside, second, an amount equal to the Fees payable to such Bank
accrued through such day and not previously set aside, and third, the
Servicing Fee accrued through such day for the Purchased Interest and
not previously set aside; and
(ii) subject to Section 1.4(f), if such day is not a
Termination Day, remit to the Seller, on behalf of the Banks, the
remainder of the percentage of such Collections represented by the
Purchased Interest, to the extent representing a return on the Capital;
such Collections shall be automatically reinvested in Pool Receivables,
and in the Related Security and Collections and other proceeds with
respect thereto, and the Purchased Interest shall be automatically
recomputed pursuant to Section 1.3;
(iii) if such day is a Termination Day, (A) set aside and
retain in the Collection Account for each Bank, the entire remainder of
such Bank's Share of the percentage of the
-3-
Collections represented by the Purchased Interest; provided that, so
long as the Facility Termination Date has not occurred, if any amounts
are so set aside and retained in the Collection Account on any
Termination Day and thereafter, the conditions set forth in Section 2
of Exhibit II are satisfied or are waived by the Agent and the Majority
Banks, such previously set aside amounts shall, to the extent
representing a return on the Capital, be reinvested in accordance with
the preceding paragraph (ii) on the day of such subsequent satisfaction
or waiver of conditions, and (B) set aside and retain in the Collection
Account the Banks' Pro Rata Share of the entire remainder of the
Collections in the Collection Account represented by the Seller's Share
of the Collections, if any; provided, that so long as the Commitment
Termination Date has not occurred, if any amounts are so set aside and
retained in the Collection Account on any Termination Day and
thereafter, the conditions set forth in Section 2 of Exhibit II are
satisfied or are waived by the Agent and the Majority Banks, such
previously set aside amounts shall be distributed to the Seller on the
day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be
reinvested in accordance with the foregoing paragraph (ii) or the
proviso to paragraph (iii), release to the Seller (subject to Section
1.4(f)) for its own account any Collections in excess of (x) such
amounts, (y) the amounts that are required to be set aside and retained
in the Collection Account pursuant to paragraph (i) above and (z) in
the event Xxxxxxx (or any Affiliate of Warnaco) is not the Servicer,
all reasonable and appropriate out-of-pocket costs and expenses of such
Servicer of servicing, collecting and administering the Pool
Receivables.
(c) The Servicer shall deposit into an account designated by the Agent
for the benefit of the Banks, on each Settlement Date:
(i) Collections held on deposit in the Collection Account for
the benefit of each Bank pursuant to Section 1.4(b)(i) in respect of
accrued Discount and accrued and unpaid Fees;
(ii) Collections held on deposit in the Collection Account for
the benefit of each Bank pursuant to Section 1.4(f); and
(iii) on any Termination Day, the lesser of (x) the sum of (i)
the amount of Collections then held on deposit in the Collection
Account for the benefit of each Bank pursuant to Section 1.4(b)(iii)(A)
plus (ii) each Bank's Percentage of the amount of Collections then on
deposit in the Collection Account in respect of the Seller's Share of
Collections pursuant to Section 1.4(b)(iii)(B) and (y) the aggregate
amount of Capital.
The Servicer shall deposit to its own account from Collections held on deposit
in the Collection Account pursuant to Section 1.4(b)(i) in respect of the
accrued Servicing Fee, an amount equal to such accrued Servicing Fee.
-4-
(d) Upon receipt of funds deposited into the Agent's account pursuant
to Section 1.4(c), the Agent shall distribute to each Bank the portion of such
funds payable to such Bank and each Bank shall cause such funds to be
distributed as follows:
(i) if such distribution occurs on a day that is not a
Termination Day, first to such Bank in payment in full of all accrued
Discount and accrued and unpaid Fees payable to such Bank, and second,
if the Servicer has set aside amounts in respect of the Servicing Fee
pursuant to Section 1.4(b)(i) and has not retained such amounts
pursuant to Section 1.4(c), to the Servicer (payable in arrears on each
Settlement Date) in payment in full of each Bank's Share of accrued
Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a
day when the Purchased Interest exceeds 100%, first to such Bank in
payment in full of all accrued Discount and accrued and unpaid Fees
payable to such Bank, second to such Bank in payment in full of its
Capital (or, if such day is not a Termination Day, the amount necessary
to reduce the Purchased Interest to 100%), third, if Xxxxxxx or an
Affiliate of Warnaco is not the Servicer, to the Servicer in payment in
full of all accrued Servicing Fees, fourth, if the Capital of the
Purchased Interest and accrued Discount with respect to each Portion of
Capital thereof have been reduced to zero, and all accrued Servicing
Fees payable to the Servicer (if other than Xxxxxxx or an Affiliate of
Warnaco) have been paid in full, to such Bank, the Agent, and any other
Indemnified Party or Affected Person in payment in full of any other
amounts owed thereto by the Seller hereunder and, fifth, unless such
amount has been retained by the Servicer pursuant to Section 1.4(c), to
the Servicer (if the Servicer is Xxxxxxx or an Affiliate of Warnaco) in
payment in full of all accrued Servicing Fees for such Purchased
Interest.
After the Capital, Discount, Fees and Servicing Fees with respect to the
Purchased Interest, and any other amounts payable by the Seller and the Servicer
to the Banks, the Agent, or any other Indemnified Party or Affected Person
hereunder, have been paid in full, all additional Collections with respect to
the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool
Receivable is reduced or adjusted as a result of any defective,
rejected, returned, repossessed or foreclosed goods or services, or any
revision, cancellation, allowance, discount or other adjustment made by
any Originator, the Servicer, the Seller or any Affiliate of the
Seller, or any setoff or dispute between any Originator, the Seller or
any Affiliate of the Seller and an Obligor, the Seller shall be deemed
to have received on such day a Collection of such Pool Receivable in
the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in
Section 1(g) or (m) of Exhibit III is not true with respect to any Pool
Receivable, the Seller shall be deemed to have received on such day a
Collection of such Pool Receivable in full;
-5-
(iii) except as otherwise required by applicable law or the
relevant Contract, all Collections received from an Obligor of any
Receivable shall be applied to the Receivables of such Obligor in the
order of the age of such Receivables, starting with the oldest such
Receivable, unless such Obligor designates in writing its payment for
application to specific Receivables; and
(iv) if and to the extent the Agent or any Bank shall be
required for any reason to pay over to an Obligor (or any trustee,
receiver, custodian or similar official in any Insolvency Proceeding)
any amount received by it hereunder, such amount shall be deemed not to
have been so received by the Agent or such Bank, as the case may be,
but rather to have been retained by the Seller and, accordingly, the
Agent or such Bank, as the case may be, shall have a claim against the
Seller for such amount, payable when and to the extent that any
distribution from or on behalf of such Obligor is made in respect
thereof.
(f) If at any time the Seller shall wish to cause the reduction of
Capital of the Purchased Interest, the Seller may do so as follows:
(i) the Seller shall give the Agent and the Servicer at least
five Business Days' prior written notice thereof (including the amount
of such proposed reduction and the proposed date on which such
reduction will commence);
(ii) on the proposed date of commencement of such reduction
and on each day thereafter, the Servicer shall cause Collections not to
be reinvested until the amount thereof not so reinvested shall equal
the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in the
Collection Account for the benefit of the Banks, for payment to the
Agent on behalf of each Bank on the next Settlement Date immediately
following the current Settlement Period, and the Capital of each
Purchased Interest shall be deemed reduced in the amount to be paid to
the applicable Bank only when in fact finally so paid;
provided, that:
(A) the amount of any such reduction shall be not less than
$2,000,000 and shall be an integral multiple of $100,000, and the
entire Capital of the Purchased Interest after giving effect to such
reduction shall be not less than $2,000,000 and shall be in an integral
multiple of $100,000 (unless such Capital shall have been reduced to
zero);
(B) the Seller shall choose a reduction amount, and the date
of commencement thereof, so that to the extent practicable such
reduction shall commence and conclude in the same Settlement Period;
and
(C) The Capital of each Bank shall be reduced pro-rata such
that after giving effect to such reduction, the outstanding Capital of
the Purchased Interest of such Bank hereunder
-6-
and the outstanding "Capital" of any Purchased Interest purchased under
the Receivables Purchase Agreement by such Bank's Related Conduit
Purchaser (or such Bank's pro rata portion of such amount if more than
one Bank is related to such Bank's Related Conduit Purchaser) is equal
to such Bank's Percentage of the Total Outstanding Capital.
SECTION 1.5. Fees. The Seller shall pay to the Agent for the account of
the Banks certain fees in the amounts and on the dates set forth in a letter,
dated the date hereof, among the Seller and the Agent (as such letter may be
amended, supplemented or otherwise modified from time to time, the "Fee
Letter").
SECTIONS 1.6. through 1.8 Incorporation by Reference. Sections 1.6
through 1.8 of the Receivables Purchase Agreement are hereby incorporated herein
by this reference, except that each reference therein to an "Investor" or the
"Investors" shall be deemed to be a reference to a Bank or the Banks,
respectively.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
EVENTS OF TERMINATION
SECTION 2.1. Representations and Warranties; Covenants. The Seller
hereby makes the representations and warranties, and hereby agrees to perform
and observe the covenants, set forth in Exhibits III and IV, respectively,
hereto.
SECTION 2.2. Termination Events. If any of the Termination Events set
forth in Exhibit V shall occur, the Agent (at the direction of the Required
Banks) may, by notice to the Seller, declare the Commitment Termination Date to
have occurred (in which case the Commitment Termination Date shall be deemed to
have occurred); provided that, automatically upon the occurrence of any event
(without any requirement for the passage of time or the giving of notice)
described in paragraph (f) of Exhibit V, the Commitment Termination Date shall
occur. Upon any such declaration, occurrence or deemed occurrence of the
Commitment Termination Event, the Banks and the Agent shall have, in addition to
the rights and remedies which they may have under this Agreement, all other
rights and remedies provided after default under the New York UCC and under
other applicable law, which rights and remedies shall be cumulative.
ARTICLE III.
INDEMNIFICATION
SECTIONS 3.1. through 3.2. Incorporation by Reference. Each of Sections
3.1 through 3.2 of the Receivables Purchase Agreement is hereby incorporated
herein by this reference, except that: (i) each reference therein to an
"Investor" or the "Investors" shall be deemed to a Bank or be a reference to the
Banks and (ii) each occurrence of the phrase ", the Agent or the Co-Agent" shall
be replaced with the phrase "or the Agent".
-7-
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
SECTION 4.1. Appointment of the Servicer. (a) The servicing,
administering and collection of the Pool Receivables shall be conducted by the
Person so designated from time to time as the Servicer in accordance with this
Section. Until the Agent gives notice to Xxxxxxx (in accordance with this
Section) of the designation of a new Servicer, Xxxxxxx is hereby designated as,
and hereby agrees to perform the duties and obligations of, the Servicer
pursuant to the terms hereof. Upon the occurrence of a Termination Event, the
Agent may designate as Servicer any Person (including itself) to succeed Xxxxxxx
or any successor Servicer, on the condition in each case that any such Person so
designated shall agree to perform the duties and obligations of the Servicer
pursuant to the terms hereof.
(b) Upon the designation of a successor Servicer as set forth in
Section 4.1(a), Xxxxxxx agrees that it will terminate its activities as Servicer
hereunder in a manner that the Agent reasonably determines will facilitate the
transition of the performance of such activities to the new Servicer, and
Xxxxxxx shall cooperate with and assist such new Servicer. Such cooperation
shall include access to and transfer of related records and use by the new
Servicer of all licenses, hardware or software necessary or desirable to collect
the Pool Receivables and the Related Security.
(c) Xxxxxxx acknowledges that, in making their decision to execute and
deliver this Agreement, the Agent and the Banks have relied on Xxxxxxx'x
agreement to act as Servicer hereunder. Accordingly, Xxxxxxx agrees that it will
not voluntarily resign as Servicer.
(d) The Servicer may delegate its duties and obligations hereunder to
any subservicer (each a "Sub-Servicer"); provided, that, in each such
delegation: (i) such Sub-Servicer shall agree in writing to perform the duties
and obligations of the Servicer pursuant to the terms hereof, (ii) the Servicer
shall remain primarily liable for the performance of the duties and obligations
so delegated, (iii) the Seller, the Agent and the Banks shall have the right to
look solely to the Servicer for performance and (iv) the terms of any agreement
with any Sub-Servicer shall provide that the Agent may terminate such agreement
upon the termination of the Servicer hereunder by giving notice of its desire to
terminate such agreement to the Servicer (and the Servicer shall provide
appropriate notice to each such Sub-Servicer); provided, however, that if any
such delegation is to any Person other than Warnaco or an Affiliate of Warnaco,
the Agent shall have consented in writing in advance to such delegation.
SECTION 4.2. Duties of the Servicer. (a) The Servicer shall take or
cause to be taken all such action as may be necessary or advisable to administer
and collect each Pool Receivable from time to time, all in accordance with this
Agreement and all applicable laws, rules and regulations, with reasonable care
and diligence, and in accordance with the Credit and Collection Policies. The
Servicer shall set aside, for the accounts of the Seller and the Banks, the
amount of the Collections to which each is entitled in accordance with Article
I. The Servicer may, in accordance with the applicable Credit and Collection
Policy, extend the maturity of any Pool Receivable, so long as no Termination
Event or Unmatured Termination Event has occurred or would result from such
-8-
extension, and extend the maturity or adjust the Outstanding Balance of any
Defaulted Receivable as the Servicer may determine to be appropriate to maximize
Collections thereof; provided, however, that: (i) such extension or adjustment
shall not alter the status of such Pool Receivable as a Defaulted Receivable or
limit the rights of the Banks or the Agent under this Agreement and (ii) if a
Termination Event has occurred and Xxxxxxx or an Affiliate of Warnaco is serving
as the Servicer, Xxxxxxx or such Affiliate may make such extension or adjustment
only upon the prior approval of the Agent. The Seller shall deliver to the
Servicer and the Servicer shall hold for the benefit of the Seller and the Agent
(for the benefit of the Banks), in accordance with their respective interests,
all records and documents (including computer tapes or disks) with respect to
each Pool Receivable. Notwithstanding anything to the contrary contained herein,
for so long as a Termination Event has occurred and is continuing, the Agent may
direct the Servicer (whether the Servicer is Xxxxxxx or any other Person) to
commence or settle any legal action to enforce collection of any Pool Receivable
or to foreclose upon or repossess any Related Security.
(b) The Servicer shall, as soon as practicable following actual receipt
of collected funds, turn over to the Seller the collections of any indebtedness
that is not a Pool Receivable, less, if Xxxxxxx or an Affiliate of Warnaco is
not the Servicer, all reasonable and appropriate out-of-pocket costs and
expenses of such Servicer of servicing, collecting and administering such
collections. The Servicer, if other than Xxxxxxx or an Affiliate of Warnaco,
shall, as soon as practicable upon demand, deliver to the Seller all records in
its possession that evidence or relate to any indebtedness that is not a Pool
Receivable, and copies of records in its possession that evidence or relate to
any indebtedness that is a Pool Receivable.
(c) The Servicer's obligations hereunder shall terminate on the later
of: (i) the Commitment Termination Date and (ii) the date on which all amounts
required to be paid to the Banks, the Agent and any other Indemnified Party or
Affected Person hereunder shall have been paid in full.
After such termination, if Xxxxxxx or an Affiliate of Warnaco was not
the Servicer on the date of such termination, the Servicer shall promptly
deliver to the Seller all books, records and related materials that the Seller
previously provided to the Servicer, or that have been obtained by the Servicer,
in connection with this Agreement.
SECTIONS 4.3. through 4.4. Incorporation by Reference. Each of Sections
4.3 and 4.4 of the Receivables Purchase Agreement are hereby incorporated herein
by this reference except that each reference therein to the "Investors" shall be
deemed to be a reference to the Banks.
SECTION 4.5. Responsibilities of the Seller. Anything herein to the
contrary notwithstanding, the Seller shall pay when due any taxes, including any
sales taxes payable in connection with the Pool Receivables and their creation
and satisfaction. Neither the Agent nor any Bank shall have any obligation or
liability with respect to any Pool Asset, nor shall either of them be obligated
to perform any of the obligations of the Seller or Xxxxxxx thereunder.
SECTION 4.6. Servicing Fee. (a) Subject to Section 4.6(b), the Servicer
shall be paid a fee equal to .75% per annum (the "Servicing Fee Rate") of the
daily average aggregate Outstanding
-9-
Balance of the Pool Receivables. Each Bank's Share of such fee shall be paid
solely from the distributions contemplated by Section 1.4(d), and the Seller's
Share of such fee shall be paid by the Seller.
(b) If the Servicer ceases to be Xxxxxxx or an Affiliate of Warnaco,
the servicing fee shall be the greater of: (i) the amount calculated pursuant to
clause (a), and (ii) an alternative amount reasonably specified by the successor
Servicer not to exceed 100% of the aggregate reasonable costs and expenses
incurred by such successor Servicer in connection with the performance of its
obligations as Servicer.
ARTICLE V.
THE AGENT
SECTION 5.1. Appointment and Authorization. Each Bank hereby
irrevocably appoints, designates and authorizes the Agent to take such action on
its behalf under the provisions of this Agreement and each other Transaction
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Transaction
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Transaction Document, the Agent shall not have any
duties or responsibilities, except those expressly set forth herein, nor shall
the Agent have or be deemed to have any fiduciary relationship with any Bank,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Transaction Document
or otherwise exist against the Agent.
SECTION 5.2. Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Transaction Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
SECTION 5.3. Liability of Agent. None of the Agent or any of its
affiliates, officers, directors, employees, agents or attorneys-in-fact (each,
an "Agent-Related Person") shall (i) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Agreement or any
other Transaction Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Banks for any recital, statement, representation or
warranty made by an Originator, the Seller or the Servicer or any Subsidiary or
Affiliate of the Seller, the Servicer, or any officer thereof, contained in this
Agreement or in any other Transaction Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Transaction
Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Transaction Document, or for any
failure of an Originator, Seller, Servicer or any other party to any Transaction
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any
-10-
Bank to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other
Transaction Document, or to inspect the properties, books or records of any
Originator, Seller, Servicer or any of the Originators', Seller's, or Servicer's
Subsidiaries or Affiliates.
SECTION 5.4. Reliance by Agent. (a) The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other 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
counsel to the Originator, Seller or Servicer), independent accountants and
other experts selected by the Agent. The Agent shall 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 Majority Banks as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Transaction Document in accordance with a request or consent of the
Majority Banks and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 1.2, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Agent to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to the Bank.
SECTION 5.5. Notice of Termination Events. The Agent shall not be
deemed to have knowledge or notice of the occurrence of any Termination Event,
except with respect to defaults in any payment in respect of Capital and
Discount and fees required to be paid to the Agent for the account of the Banks,
unless the Agent shall have received written notice from a Bank or the Seller,
or Servicer referring to this Agreement, describing such Termination Event and
stating that such notice is a "notice of Termination Event." The Agent will
notify the Banks of its receipt of any such notice. The Agent shall take such
action with respect to such Termination Event as may be requested by the
Majority Banks in accordance with Section 2.2; provided, however, that unless
and until the Agent has received any such request, the Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Termination Event as it shall deem advisable or in the best
interest of the Banks.
SECTION 5.6. Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Originators, Seller or Servicer and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Bank. Each Bank represents to the Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made
-11-
its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Originators,
Seller or Servicer and its Subsidiaries, and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to the Seller hereunder. Each
Bank also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Transaction Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Originators, Seller
and Servicer. Except for notices, reports and other documents expressly herein
required to be furnished to the Banks by the Agent, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Originators, Seller or Servicer which may
come into the possession of any of the Agent-Related Persons.
SECTION 5.7. Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Seller and without limiting the obligation of the Seller to do so), pro rata,
from and against any and all Indemnified Amounts; provided, however, that no
Bank shall be liable for the payment to the Agent-Related Persons of any portion
of such Indemnified Amounts resulting solely from such Person's gross negligence
or willful misconduct. Without limitation of the foregoing, each Bank shall
reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Transaction Document, or any
document contemplated by or referred to herein, to the extent that the Agent is
not reimbursed for such expenses by or on behalf of the Seller. The undertaking
in this Section shall survive the repurchase by the Seller of all of the
undivided ownership interests of the Purchased Interest purchased by the Banks
hereunder and the resignation or replacement of the Agent.
SECTION 5.8. Agent in Individual Capacity. BNS and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with any Originator, Seller
or Servicer and their respective Subsidiaries and Affiliates as though BNS were
not the Agent hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, BNS or its Affiliates may receive
information regarding the Originators, Seller or Servicer or their respective
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Originators, Seller, Servicer or such Affiliate) and
acknowledge that the Agent shall be under no obligation to provide such
information to them. With respect to its undivided ownership interests in the
Purchased Interest, BNS shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as
-12-
though it were not the Agent, and the terms "Bank" and "Banks" include BNS in
its individual capacity.
SECTION 5.9. Successor Agent. The Agent may resign as Agent upon 30
days' notice to the Banks. The Agent may be removed at any time by the
affirmative vote of the Majority Banks upon 30 days' prior written notice
thereof to the Investors and the Agent, if the Agent shall have engaged in
willful misconduct or shall have been grossly negligent in the performance of
its duties as Agent. If the Agent resigns under this Agreement, the Majority
Banks shall appoint from among the Banks a successor agent for the Banks which
successor agent shall be approved by the Seller. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
may appoint, after consulting with the Banks and the Seller, a successor agent
from among the Banks. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of Article III and this Article V and Sections 1.7 and 1.8, shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is 30 days following a retiring Agent's
notice of resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of the duties of the
Agent hereunder until such time, if any, as the Majority Banks appoint a
successor agent as provided for above.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1. Amendments, Etc. No amendment or waiver of any provision
of this Agreement (including, without limitation, any provision of the
Receivables Purchase Agreement which is incorporated herein by reference) or any
other Transaction Document, or consent to any departure by the Seller or the
Servicer therefrom, shall be effective unless in a writing signed by the Agent
and the Majority Banks, and, in the case of any amendment, by the other parties
thereto; and then such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that without the prior written permission of each Bank, no amendment or
waiver of any provision of this Agreement shall (a) reduce the amount of the
Capital or Discount that is payable on account of any undivided ownership
interest of the Purchased Interest or delay any scheduled date for payment
thereof; or (b) increase the Total Commitment hereunder. No failure on the part
of the Banks or the Agent to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right.
SECTION 6.2. Notices, Etc. All notices and other communications
hereunder shall, unless otherwise stated herein, be in writing (which shall
include facsimile communication) and be sent or delivered to each party hereto
at its address set forth under its name on the signature pages hereof
-13-
or its address specified in the Assignment and Acceptance pursuant to which it
became a Bank, or, as to each party, at such other address as shall be
designated by such party in a written notice to the other parties hereto.
Notices and communications by facsimile shall be effective when sent (and shall
be followed by hard copy sent by first class mail), and notices and
communications sent by other means shall be effective when received.
SECTION 6.3. Assignability. (a) Each Bank (and its successors and
assigns) may assign all or a portion of its rights and obligations hereunder
(including without limitation, all or a portion of its Percentage of the Total
Commitment and any undivided ownership interest of the Purchased Interest owned
by it) with the prior consent of the Seller; provided, however, that such
consent shall not be unreasonably withheld; and provided further, that no such
consent shall be required if the assignment is made to any other Bank, any
Affiliate of such Bank (other than a director or officer thereof), any Purchaser
or other Program Support Provider.
(b) Each Bank may, without the prior written consent of the Seller, at
any time grant one or more Program Support Providers, participating interests in
such Bank's undivided ownership interest of the Purchased Interest. In the event
of any such grant by such Bank of a participating interest to a Program Support
Provider, such Bank shall remain responsible for the performance of its
obligations hereunder. The Seller agrees that each Program Support Provider
shall be entitled to the benefits of Sections 1.7 and 1.8.
(c) Except as provided in Section 4.1(d), neither the Seller nor the
Servicer may assign its rights or delegate its obligations hereunder or any
interest herein without prior written consent of the Agent.
(d) Without limiting any other rights that may be available under
applicable law, the rights of the Banks may be enforced through them or by their
agents.
SECTION 6.4. Costs, Expenses and Taxes. (a) In addition to the rights
of indemnification granted under Section 3.1 hereof, the Seller agrees to pay on
demand all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including periodic internal audits by
the Agent or its designees of Pool Receivables) of this Agreement, the other
Transaction Documents and the other documents and agreements to be delivered
hereunder (and all reasonable costs and expenses in connection with any
amendment, waiver or modification of any thereof), including: (i) Attorney Costs
for the Agent, the Banks and their respective Affiliates and agents with respect
thereto and with respect to advising the Agent, the Banks and their respective
Affiliates and agents as to their rights and remedies under this Agreement and
the other Transaction Documents, and (ii) all reasonable costs and expenses
(including Attorney Costs), if any, of the Agent, the Banks and their respective
Affiliates and agents in connection with the enforcement of this Agreement and
the other Transaction Documents.
(b) In addition, the Seller shall pay on demand any and all stamp and
other taxes and fees payable in connection with the execution, delivery, filing
and recording of this Agreement or the other documents or agreements to be
delivered hereunder, and agrees to save each Indemnified Party
-14-
harmless from and against any liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees.
SECTION 6.5. Governing Law and Jurisdiction. (a) THIS AGREEMENT SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK; AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH SERVICE MAY
BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
SECTION 6.6. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one and the
same agreement.
SECTION 6.7. Termination. 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 the Final Payout Date. The then
current date set forth in clause (a) of the definition of Commitment Termination
Date may be extended for additional 364-day periods in the sole discretion of
the Banks upon no less than 30 days' written notice to the Seller prior to the
then current Commitment Termination Date. The provisions of Sections 1.7, 1.8,
3.1, 3.2, 6.4, 6.5 and 6.8 shall survive any termination of this Agreement.
SECTION 6.8. WAIVER OF JURY TRIAL. THE BANKS, THE SELLER, THE SERVICER
AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY
-15-
OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE. THE BANKS, THE SELLER, THE MASTER SERVICER AND THE AGENT EACH AGREE
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES
THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY
PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
SECTION 6.9. Entire Agreement. This Agreement and the other Transaction
Documents embody the entire agreement and understanding between the parties
hereto, and supersede all prior or contemporaneous agreements and understandings
of such Persons, verbal or written, relating to the subject matter hereof and
thereof.
SECTION 6.10. Headings. The captions and headings of this Agreement and
in any Exhibit, Schedule or Annex hereto are for convenience of reference only
and shall not affect the interpretation hereof or thereof.
-16-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SELLER: WARNACO OPERATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: President
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: President
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
50% THE BANK OF NOVA SCOTIA
By: /s/ Xxxxx X. Xxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxx
Title: Unit Head
Address: Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
50% CITICORP NORTH AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxx
_____________________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone No.: (000) 000-0000
facsimile No.: (000) 000-0000
SERVICER: XXXXXXX STREET, INC.
By: /s/ Xxxx X. Xxxxxxx
_____________________________________
Name: Xxxx X. Xxxxxxx
Title: Assistant Treasurer
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Assistant Treasurer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
AGENT: THE BANK OF NOVA SCOTIA
By: /s/ Xxxxx X. Xxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxx
Title: Unit Head
Address: Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
EXHIBIT I
DEFINITIONS
As used in the Agreement (including its Exhibits), 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):
"Affected Person" means the Agent, any Bank or any of their respective
Affiliates.
"Agent-Related Person" has the meaning set forth in Section 5.3.
"Agent's Account" means the special account (account number 2158-13) of
the Agent maintained at the office of The Bank of Nova Scotia, New York Agency
(ABA# 000000000, Reference: Liberty Street Funding Corp.) for the benefit of the
Banks.
"Assignee" means any Person (other than the Agent and a Bank then a
party to this Agreement) who shall have executed an Assignment and Acceptance
and shall have become a Bank hereunder pursuant to Section 6.3(a).
"Assignment and Acceptance" means an assignment and acceptance
agreement entered into by a Bank, an Assignee and the Agent, pursuant to which
such Assignee may become a party to the Agreement.
"Banks' Pro Rata Share" means a fraction, expressed as a Percentage,
the numerator of which is the aggregate outstanding Capital of the Purchased
Interest hereunder and the denominator of which is the Total Outstanding
Capital.
"Bank's Share" with respect to any Bank of an amount means such amount
multiplied by such Bank's Percentage of the Purchased Interest.
"Banks" means each of the banks parties to this Agreement and each
Assignee of such banks that shall become a party to the Agreement pursuant to
Section 6.3.
"Capital" means the amount paid to the Seller in respect of the
Purchased Interest by the Banks, pursuant to the Agreement, in each case reduced
from time to time by Collections distributed on account of such Capital pursuant
to Section 1.4(d); provided that if such Capital shall have been reduced by any
distribution and thereafter all or a portion of such distribution is rescinded
or must otherwise be returned for any reason, such Capital shall be increased by
the amount of such rescinded or returned distribution, as though it had not been
made.
"Commitment Termination Date" means the earliest of (a) September 29,
1999, (b) the Facility Termination Date under the Receivables Purchase
Agreement, (c) the date determined
Exhibit I-1
pursuant to Section 2.2, and (d) the date the Total Commitment reduces to zero.
The date set forth in clause (a) above may be extended pursuant to Section 6.7
of the Agreement.
"Discount" means for any Portion of Capital of the Purchased Interest
for any Settlement Period the result of:
AR x C x ED/360 + TF
where:
AR = the Assignee Rate for the Portion of Capital
for such Settlement Period
C = the weighted average of such portion of
Capital during such Settlement Period
ED = the actual number of days elapsed during such
Settlement Period
TF = the Termination Fee, if any, for the Portion
of Capital for such Settlement Period;
provided that no provision of the Agreement shall require the payment or permit
the collection of Discount in excess of the maximum permitted by applicable law;
and provided, further, that Discount for the Portion of Capital of the Purchased
Interest shall not be considered paid by any distribution to the extent that at
any time all or a portion of such distribution is rescinded or must otherwise be
returned for any reason.
"Fee Letter" has the meaning set forth in Section 1.5.
"Fees" means the fees payable by the Seller to the Agent for the
account of the Banks pursuant to the Fee Letter.
"Indemnified Party" means the Banks, the Agent or any of their
respective Affiliates, employees, officers, directors, agents, counsel,
successors, transferees or assigns.
"Majority Banks" means at any time Banks holding undivided ownership
interests of the Purchased Interest having Capital equal to more than 50% of the
aggregate outstanding Capital of all undivided ownership interests of the
Purchased Interest or, if no Capital is then outstanding, Banks having more than
50% of the Total Commitment.
"Percentage" of any Bank means, (a) with respect to any Bank that is a
party hereto as of the date hereof, the percentage set forth next to its
signature on this Agreement, as reduced by any Assignment and Acceptance entered
into with an Assignee, or (b) with respect to a Bank that
Exhibit I-2
has entered into an Assignment and Acceptance, the amount set forth therein as
such Bank's Percentage, or such amount as reduced by an Assignment and
Acceptance entered into between such Bank and subsequent Assignee.
"Receivables Purchase Agreement" means the Receivables Purchase
Agreement, dated as of the date hereof, among the Seller, Xxxxxxx Street, Inc.,
as Servicer, Liberty Street Funding Corp. and Corporate Asset Funding Company,
Inc., as Investors, The Bank of Nova Scotia, as Agent, and Citicorp North
America, Inc., as Co-Agent, as the same may, from time to time, be amended,
modified or supplemented.
"Required Banks" means at any time Banks holding undivided ownership
interests of the Purchased Interest having Capital equal to more than 66 2/3% of
the aggregate outstanding Capital of all undivided ownership interests of the
Purchased Interest or, if no Capital is then outstanding, Banks having more than
662/3% of the Total Commitment.
"Servicer" means Xxxxxxx Street, Inc., in its capacity as servicer
hereunder.
"Termination Day" means: (a) each day on which the conditions set forth
in Section 2 of Exhibit II to the Agreement are not satisfied and (b) each day
that occurs on or after the Commitment Termination Date.
"Termination Event" has the meaning specified in Exhibit V.
"Total Commitment" means $200,000,000, as such amount may be (a)
reduced pursuant to Section 1.1 or (b) increased upon the request of the Seller
and with the consent of the Banks; it being understood that the Banks shall be
under no obligation to consent to an increase in the Total Commitment at any
time and that such consent may be withheld by the Banks in their sole and
absolute discretion without regard to whether such consent has been unreasonably
withheld. References to the unused portion of the Total Commitment shall mean,
at any time, the Total Commitment (as then reduced pursuant to Section 1.1(b) or
pursuant to the next sentence or as then increased pursuant to the preceding
sentence), minus the sum of the then outstanding Capital of the Purchased
Interest under the Agreement and the then outstanding "Capital" of the
"Purchased Interests" under the Receivables Purchase Agreement. Furthermore, on
each day on which the Seller reduces the unused portion of (or terminates) the
"Purchase Limit" under the Receivables Purchase Agreement, the Total Commitment
automatically shall reduce by the same amount (or so terminate).
Defined Terms Incorporated by Reference. Unless otherwise defined in
the Agreement and subject to the modifications herein set forth, capitalized
terms used in the Agreement or in any provisions of the Receivables Purchase
Agreement incorporated in the Agreement by reference shall have the meanings
given to them in the Receivables Purchase Agreement. Without limiting the
foregoing, the defined terms "Credit and Collection Policy" and "Monthly Report"
are hereby incorporated by reference together with the related Schedule 1 and
Annex A to the Receivables Purchase Agreement. All references to the "Agent" and
"Agreement" in
Exhibit I-3
provisions of the Receivables Purchase Agreement (including Exhibits and
Schedules) incorporated in the Agreement by reference shall, without further
reference, mean BNS, as Agent under the Agreement, and the Agreement,
respectively. Furthermore, all references in such incorporated provisions to
"Collections," "Net Receivables Pool Balance," "Pool Receivable," "Purchased
Interest," "Receivables Pool" and "Related Security" shall mean the Collections,
the Net Receivables Pool Balance, a Pool Receivable, a Purchased Interest, the
Receivables Pool and the Related Security under the Agreement, respectively. To
the extent any word or phrase is defined in the Agreement, any such word or
phrase appearing in provisions so incorporated by reference from the Receivables
Purchase Agreement shall have the meaning given to it in the Agreement. The
incorporation by reference into the Agreement from the Receivables Purchase
Agreement is for convenience only, and the Agreement and the Receivables
Purchase Agreement shall at all times be, and be treated as, separate and
distinct facilities. Incorporations by reference in the Agreement from the
Receivables Purchase Agreement shall not be affected or impaired by any
subsequent expiration or termination of the Receivables Purchase Agreement, nor
by any amendment thereof or waiver thereunder unless the Agent, as Agent for the
Banks, shall have consented to such amendment or waiver in writing.
Other Terms. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles. All
terms used in Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such Article 9.
Exhibit I-4
EXHIBIT II
CONDITIONS OF PURCHASES
1. Conditions Precedent to Initial Purchase. The initial purchase of an
undivided ownership interest in the Purchased Interest under the Agreement is
subject to the conditions precedent that the conditions precedent to the initial
purchase under the Receivables Purchase Agreement shall have been satisfied on
or prior to the date of such purchase under the Agreement and that the Agent
shall have received on or before the date of such purchase under the Agreement
the following, each (unless otherwise indicated) dated such date, in form and
substance satisfactory to the Agent:
(a) each of the documents, instruments and writings described in
paragraphs 1(a) through 1(n) of Exhibit II to the Receivables Purchase
Agreement;
(b) the Fee Letter; and
(c) such other approvals, documents and opinions as the Agent may
reasonably request.
2. Conditions Precedent to All Purchases and Reinvestments. Each
purchase and each reinvestment shall be subject to the further conditions
precedent that
(a) in the case of each purchase (other than the initial purchase), the
Servicer shall have delivered to the Agent on or before such purchase, in form
and substance satisfactory to the Agent, a completed pro forma Monthly Report to
reflect the level of Capital and related reserves after such subsequent
purchase;
(b) on the date of such purchase (including the initial purchase) or
reinvestment the following statements shall be true (and acceptance of the
proceeds of such purchase or reinvestment shall be deemed a representation and
warranty by the Seller that such statements are then true):
(i) the representations and warranties contained in Exhibit
III to the Agreement are true and correct in all material respects on
and as of the date of such purchase or reinvestment as though made on
and as of such date;
(ii) no event has occurred and is continuing, or would result
from such purchase or reinvestment, that constitutes a Termination
Event or that would constitute an Unmatured Termination Event, and
Exhibit II-1
(iii) the sum of (a) the aggregate Capital and Total Reserves
of the Purchased Interest under this Agreement and (b) the aggregate
"Capital" and "Total Reserves" of all Purchased Interests under the
Receivables Purchase Agreement would not exceed the Adjusted Net
Receivables Pool Balance.
(c) the Agent shall have received such other approvals, opinions or
documents as it may reasonably request.
Exhibit II-2
EXHIBIT III
REPRESENTATIONS AND WARRANTIES
Exhibit III of the Receivables Purchase Agreement is hereby
incorporated herein by reference, except that each reference therein to an
"Investor" or the "Investors" shall be deemed to be a reference to a Bank or the
Banks, respectively.
Exhibit III-1
EXHIBIT IV
COVENANTS
Exhibit IV of the Receivables Purchase Agreement is hereby incorporated
herein by reference, except that: (i) each reference therein to the "Agent and
the Co-Agent" or the "Agent or the Co-Agent" shall be deemed to be a reference
to the Agent, (ii) each reference to the "Agent or the Co-Agent, or their agents
or representatives" shall be deemed to be a reference to the Agent or its agents
or representatives and (iii) each reference therein to the "Facility Termination
Date, an "Investor" or the "Investors" shall be deemed to be a reference to the
Commitment Termination Date, a Bank or the Banks, respectively.
Exhibit IV-1
EXHIBIT V
TERMINATION EVENT
Each of the "Termination Events" set forth in Exhibit V of the
Receivables Purchase Agreement is hereby incorporated by reference, except that
(i) each reference therein to the "Agent and the Co-Agent, acting together"
shall be deemed to be a reference to the Agent, (ii) each reference therein to
an "Investor" or the "Investors" shall be deemed to be a reference to a Bank or
the Banks, respectively, and (iii) the references in subsection (i) thereof to
the "Parallel Purchase Commitment" shall be deemed to be a reference to the
Receivables Purchase Agreement.
Exhbit V-1
SCHEDULE I
See Schedule I to the Receivables Purchase Agreement.
SCHEDULE II
See Schedule II to the Receivables Purchase Agreement.
SCHEDULE III
See Schedule III to the Receivables Purchase Agreement.
SCHEDULE IV
See Schedule IV to the Receivables Purchase Agreement.
ANNEX A
See Annex A to the Receivables Purchase Agreement.
