AMENDMENT NO. 8 TO RECEIVABLES PURCHASE AGREEMENT
Exhibit 10.1
EXECUTION COPY
THIS AMENDMENT NO. 8 TO RECEIVABLES PURCHASE AGREEMENT (this “Amendment”), dated as of
March 18, 2011, is entered into among HBI RECEIVABLES LLC, as seller (“Seller”),
HANESBRANDS INC., in its capacity as servicer (in such capacity, the “Servicer”), the
Committed Purchasers party hereto, the Conduit Purchasers party hereto, the Managing Agents party
hereto, and HSBC SECURITIES (USA) INC. (“HSBC”), as assignee of JPMORGAN CHASE BANK, N.A.,
as agent (in such capacity, the “Agent”). Capitalized terms used herein without definition
shall have the meanings ascribed thereto in the “Purchase Agreement” referred to below.
PRELIMINARY STATEMENTS
A. Reference is made to that certain Receivables Purchase Agreement dated as of November 27,
2007 among Seller, Servicer, the Committed Purchasers, the Conduit Purchasers, the Managing Agents
and the Agent (as amended prior to the date hereof and as the same may be further amended,
restated, supplemented or modified from time to time, the “Purchase Agreement”).
B. For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto have agreed to amend certain provisions of the Purchase Agreement
upon the terms and conditions set forth herein.
SECTION 1. Amendments. Subject to the satisfaction of the conditions precedent set
forth in Section 3 hereof, the parties hereto hereby agree to amend the Purchase Agreement
as follows:
(a) Section 13.1(b)(i) of the Purchase Agreement is herby amended to delete
clause (G) in its entirety and replace it with the following:
(G) change the definition of “Delinquency Ratio,” “Dilution
Ratio,” “Combined Reserve,” “Eligible Receivable,”
“Loss-to-Liquidation Ratio,” or “Yield and Servicer Fee Reserve”
(b) Exhibit I to the Purchase Agreement is hereby amended to delete clause
(a)(i) of the definition of “Concentration Limit” in its entirety and replace it
with the following:
(i) 5.00% or
(c) Exhibit I to the Purchase Agreement is hereby amended to add the following
definitions in correct alphabetical order:
* PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST
“Combined Reserve” means, at any time, an amount equal to the Combined
Reserve Percentage multiplied by the Net Receivables Balance at such time.
“Combined Reserve Percentage” means, at any time, the amount expressed
as a percentage equal to the greater of (i) the sum of the Dynamic Dilution Reserve
Percentage and the Dynamic Loss Reserve Percentage and (ii) the sum of the Dilution
Reserve Floor Percentage and the Loss Reserve Floor Percentage.
“Dilution Horizon Ratio” means, at any time, the amount equal to (i)
the aggregate Original Balance of all Receivables generated by all Originators
during the most recently ended one and one-half (1.5) Calendar Month-period
divided by (ii) 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 in clause (i) above 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 Floor Percentage” means, at any time, a percentage
equal to the product of (i) the Expected Dilution Ratio at such time and (ii) the
Dilution Horizon Ratio at such time.
“Dynamic Dilution Reserve Percentage” means at any time, the amount
expressed as a percentage and calculated in accordance with the following formula:
DDRP = (SF x ED) + ((DS — ED) x (DS / ED)) x DHR
where:
SF = the Stress Factor at such time.
ED = the Expected Dilution Ratio as such time
DS = the highest two (2) consecutive month average of the Dilution Ratios
during the immediately preceding twelve months.
DHR = the Dilution Horizon Ratio at such time.
“Dynamic Loss Reserve Percentage” means, at any time, the amount
expressed as a percentage and calculated in accordance with the following formula
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DLRP = 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 all
Originators 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 = the Stress Factor at such time.
“Expected Dilution Ratio” means, as of any date, the average of the
Dilution Ratios for the twelve (12) months most recently ended at such time.
“Loss Reserve Floor Percentage” means, at any time, the product of (i)
5 and (ii) the percentage set forth in clause (a)(i) of the definition of
Concentration Limit.
“Servicer Fee Reserve Percentage” means, at any time, for purposes of
calculating the Yield and Servicer Fee Reserve, an amount equal to the product of
(a) the per annum rate upon which the Servicing Fee is calculated and (b) the
Three-Month Rolling Average Turnover Ratio divided by 360.
“Three-Month Rolling Average Turnover Ratio” means, at any time, the
average of the Turnover Ratios for the three most recently ended Calendar Months.
“Turnover Ratio” means, at any time, the product of (i) the aggregate
Outstanding Balance of all Receivables as of the end of the most recently ended
Calendar Month divided by the aggregate amount of Collections received
during such Calendar Month and (ii) 30.
“Yield and Fee Reserve Percentage” means, at any time, a percentage equal to:
(2L + AM + PF) x (RATR / 360)
where:
2L = two times the one-month LIBO in effect at such time.
AM = the Applicable Margin in effect at such time.
PF
= the percentage set forth in Section 3.1(a) of the Fee Letter
as in effect
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at such time.
RATR = the Three-Month Rolling Average Turnover Ratio for the most
recently ended Calendar Month.
“Yield and Servicer Fee Reserve” means, at any time, an amount equal to
the sum of (a) the product of (i) the Yield and Fee Reserve Percentage at such time
and (ii) Capital outstanding at such time plus (b) the product of (i) the Servicer
Fee Reserve Percentage at such time and (ii) the aggregate Outstanding Balance of
all Receivables at such time.
(d) Exhibit I to the Purchase Agreement is hereby amended to delete the
definitions of “Aggregate Reserves,” “Facility Termination Date” and
“Purchase Limit” in their entirety and replace them with the following:
“Aggregate Reserves” means, on any date of determination, the sum of
the Combined Reserve and the Yield and Servicer Fee Reserve.
“Facility Termination Date” means the earliest to occur of (i) March
16, 2012, and (ii) the Amortization Date.
“Purchase
Limit” means $225,000,000.
(e) The definition of “Eligible Receivable” in Exhibit I to the
Purchase Agreement is hereby amended to: (i) add the word “and” at the end of clause
(iv)(A), (ii) to delete the “; and” and replace it with “.” at the end of clause (iv)(B),
and (iii) to delete clause (iv)(C) in its entirety.
(f) Exhibit I to the Purchase Agreement is hereby amended to delete the “3.00%”
appearing in clause (v) of the definition of “Eligible Receivable” and replace it
with “5.00%”.
(g) Exhibit I to the Purchase Agreement is hereby amended to delete the
definitions of “Dilution Reserve”, “Dilution Reserve Floor”, “Dilution
Reserve Percentage”, “Loss Reserve”, “Loss Reserve Floor”, “Loss
Reserve Percentage” and “Yield and Servicing Fee Reserve”, in their entirety.
(h) The Purchase Agreement is hereby amended to delete Schedule A in its
entirety and replace it with the new Schedule A attached hereto as Annex I.
(i) The Purchase Agreement is hereby amended to delete Schedule C in its
entirety and replace it with the new Schedule C attached hereto as Annex II.
SECTION 2. Representations and Warranties. Each of the Seller and the Servicer
hereby represents and warrants to each of the other parties hereto, as to itself that:
(a) It has all necessary corporate or company power and authority to execute and
deliver this Amendment and to perform its obligations under the Purchase Agreement
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as amended hereby, the execution and delivery of this Amendment and the performance of its
obligations under the Purchase Agreement as amended hereby has been duly authorized by all
necessary corporate or company action on its part and this Amendment constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its terms, except as
such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws relating to or limiting creditors’ rights generally and by general
principles of equity (regardless of whether enforcement is sought in a proceeding in equity
or at law).
(b) On the date hereof, before and after giving effect to this Amendment, (i) no
Amortization Event or Potential Amortization Event has occurred and is continuing and (ii)
the aggregate Purchaser Interests do not exceed 100%.
SECTION 3. Conditions Precedent. This Amendment shall become effective on the first
Business Day (the “Effective Date”) on which the Agent or its counsel has received five (5)
counterpart signature pages to this Amendment executed by each of the parties hereto.
SECTION 4. Reference to and Effect on the Transaction Documents.
(a) Upon the effectiveness of this Amendment, (i) each reference in the Purchase
Agreement to “this Receivables Purchase Agreement”, “this Agreement”, “hereunder”, “hereof”,
“herein” or words of like import shall mean and be a reference to the Purchase Agreement as
amended or otherwise modified hereby, and (ii) each reference to the Purchase Agreement in
any other Transaction Document or any other document, instrument or agreement executed
and/or delivered in connection therewith, shall mean and be a reference to the Purchase
Agreement as amended or otherwise modified hereby.
(b) Except as specifically amended, terminated or otherwise modified above, the terms
and conditions of the Purchase Agreement, of all other Transaction Documents and any other
documents, instruments and agreements executed and/or delivered in connection therewith,
shall remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Agent, any Managing Agent or any Purchaser under
the Purchase Agreement or any other Transaction Document or any other document, instrument
or agreement executed in connection therewith, nor constitute a waiver of any provision
contained therein.
SECTION 5. Execution in Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of
which taken together shall constitute but one and the same instrument. Delivery of an executed counterpart of a
signature page to this Amendment by facsimile or other electronic format shall be effective as
delivery of a manually executed counterpart of this Amendment.
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SECTION 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.
SECTION 7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose.
SECTION 8. Fees and Expenses. Seller hereby confirms its agreement to pay on demand
all reasonable costs and expenses of the Agent, the Managing Agents or Purchasers in connection
with the preparation, execution and delivery of this Amendment and any of the other instruments,
documents and agreements to be executed and/or delivered in connection herewith, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel to the Agent, Managing Agents
or Purchasers with respect thereto.
[Remainder of Page Deliberately Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective officers as of the date first above written.
| HBI RECEIVABLES LLC, as Seller | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxxx Title: Vice President and Treasurer |
||||
| HANESBRANDS INC., as Servicer | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxxx Title: Assistant Treasurer |
||||
Signature Page
to
Amendment No. 8 to RPA
to
Amendment No. 8 to RPA
| BRYANT PARK FUNDING LLC, as a Conduit Purchaser | ||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: Xxxxxx Xxxxx Title: Vice-President |
||||
| HSBC SECURITIES (USA) Inc., as a Managing Agent and Agent | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxxxx Title: Vice President |
||||
| HSBC BANK PLC, as a Committed Purchaser | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: Xxxxx Xxxxxx Title: Associate Director |
||||
Signature Page
to
Amendment No. 8 to RPA
to
Amendment No. 8 to RPA
| MARKET STREET FUNDING LLC, as a Conduit Purchaser | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: Xxxxx X. Xxxxx Title: Vice President |
||||
| PNC BANK, N.A., as a
Committed Purchaser and as a Managing Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: Xxxxxxx X. Xxxxxx Title: Vice President |
||||
Signature Page
to
Amendment No. 8 to RPA
to
Amendment No. 8 to RPA
ANNEX I
SCHEDULE A
PURCHASE GROUPS; COMMITMENTS; GROUP PURCHASE LIMITS
HSBC Purchase Group |
||
Group Purchase Limit:
|
$112,500,000 | |
Managing Agent:
|
HSBC Securities (USA) Inc. | |
Conduit Purchaser:
|
Bryant Park Funding LLC | |
Committed Purchaser:
|
HSBC Bank PLC | |
Commitment:
|
$112,500,000 | |
PNC Purchase Group |
||
Group Purchase Limit:
|
$112,500,000 | |
Managing Agent:
|
PNC Bank, N.A. | |
Conduit Purchaser:
|
Market Street Funding LLC | |
Committed Purchaser:
|
PNC Bank, N.A. | |
Commitment:
|
$112,500,000 |
ANNEX II
SCHEDULE C
SPECIAL CONCENTRATION PERCENTAGES
Obligor
Name |
Special
Concentration Percentage |
||||
[****]
|
[****]% | ||||
[****]
|
[****]% | ||||
**** Omitted pursuant to a confidential treatment request
