EXHIBIT 10.6
EXECUTION COPY
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CONSENT AND RELEASE AGREEMENT
dated July 31, 2001
among
LEVI XXXXXXX FUNDING, LLC
as Transferor,
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LEVI XXXXXXX FINANCIAL CENTER CORPORATION,
as Seller and Servicer,
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LEVI XXXXXXX & CO.,
as Borrower and Originator,
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LEVI XXXXXXX RECEIVABLES FUNDING, LLC
as Issuer,
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CITIBANK, N.A.,
as Indenture Trustee,
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and
BANK OF AMERICA, N.A.,
as Agent
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms................................................................ ............2
SECTION 1.02. References to Terms Defined in the Purchaser Documents and
the Bank Loan Documents...................................................................6
ARTICLE II
INTERCREDITOR PROVISIONS
SECTION 2.01. Priorities of Purchased Property..........................................................6
SECTION 2.02. Respective Interests in Purchased Property and Collateral.................................7
SECTION 2.03. Distribution of Proceeds..................................................................8
SECTION 2.04. Lockbox Accounts; Application of Collections..............................................8
SECTION 2.05. Enforcement Actions.......................................................................9
SECTION 2.06. Access to and Use of Collateral..........................................................10
SECTION 2.07. Agency for Perfection and Control........................................................10
SECTION 2.08. UCC Notices..............................................................................11
SECTION 2.09. Independent Credit Investigations........................................................11
SECTION 2.10. Limitation on Liability of Parties to Each Other.........................................11
SECTION 2.11. Marshalling of Assets....................................................................11
SECTION 2.12. Effect upon Bank Loan Documents and Purchaser Documents..................................11
SECTION 2.13. Further Assurances.......................................................................12
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Notices..................................................................................12
SECTION 3.02. Agreement Absolute.......................................................................13
SECTION 3.03. Successors and Assigns...................................................................13
SECTION 3.04. Third-Party Beneficiaries................................................................13
SECTION 3.05. Amendments, Etc..........................................................................13
SECTION 3.06. Section Titles...........................................................................13
SECTION 3.07. Severability.............................................................................13
SECTION 3.08. Execution in Counterparts................................................................13
SECTION 3.09. Governing Law............................................................................14
SECTION 3.10. Submission to Jurisdiction...............................................................14
SECTION 3.11. Consent to Service of Process............................................................14
SECTION 3.12. Waiver of Jury Trial.....................................................................14
CONSENT AND RELEASE AGREEMENT
This CONSENT AND RELEASE AGREEMENT dated as of July 31, 2001,
is entered into by and among LEVI XXXXXXX FUNDING, LLC (the "Transferor"), LEVI
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XXXXXXX FINANCIAL CENTER CORPORATION, ("LS Financial" or the "Seller"), LEVI
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XXXXXXX & CO., ("LS&Co." or the "Originator"), LEVI XXXXXXX RECEIVABLES FUNDING,
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LLC (the "Issuer"), CITIBANK, N.A., not individually but as Indenture Trustee
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(the "Indenture Trustee") and BANK OF AMERICA, N.A. ("Bank of America") in its
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capacity as administrative agent and collateral agent (the "Agent") for the
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financial institutions (the "Lenders") party to the Credit Agreement referred to
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below.
PRELIMINARY STATEMENTS
1. The Originator has agreed to sell, transfer and assign to
the Seller and the Seller has agreed to purchase from the Originator, all of the
right, title and interest of the Originator in and to certain receivables,
including the Purchased Receivables (as hereinafter defined) pursuant to a Third
Amended and Fully Restated Receivables Purchase and Sale Agreement dated as of
January 28, 2000 (as heretofore and hereafter amended, supplemented or otherwise
modified from time to time, the "Receivables Purchase and Sale Agreement")
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between the Originator and the Seller, and the Seller has further agreed to
sell, transfer and assign to the Transferor, and the Transferor has agreed to
purchase from the Seller, all of the right, title and interest of the Seller in
and to certain receivables, including the Purchased Receivables, pursuant to a
Receivables Purchase and Sale Agreement dated as of January 28, 2000, among the
Originator, the Seller, Levi Xxxxxxx Funding Corp. and the Transferor (as
heretofore and hereafter amended, supplemented or otherwise modified from time
to time, the "Receivables Sale Agreement").
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2. The Issuer, the Transferor, the Seller (including in its
capacity as servicer (the "Servicer"), and Levi Xxxxxxx Securitization Corp., as
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SPC Member, are parties to a Receivables Purchase Agreement dated as of July 31,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Receivables Purchase Agreement"), pursuant to which each of the Seller and the
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Transferor has agreed to sell to the Issuer all its respective right, title and
interest in and to the Purchased Receivables and the Servicer has agreed to
service the Purchased Receivables on behalf of the Issuer and the Issuer's
assignees, including the Indenture Trustee. The Receivables Purchase and Sale
Agreement and the Receivables Sale Agreement are sometimes hereinafter referred
to collectively as the "Receivables Sale Agreements" and the Receivables Sale
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Agreements and the Receivables Purchase Agreement are sometimes hereinafter
referred to collectively as the "Purchase Agreements"). From and after the date
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of the initial purchase under the Receivables Purchase Agreement, the
Receivables Sale Agreement shall terminate, the Transferor shall cease to
purchase Receivables from the Seller and the Seller shall sell to the Issuer
directly all of the Purchased Receivables.
3. The Issuer is party to a certain Indenture (the "Indenture")
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dated as of July 31, 2001 whereby it has pledged to the Indenture Trustee all of
its right, title and interest in and to, among other things, the Purchased
Receivables.
4. LS&Co., the Lenders and the Agent are parties to that certain
credit agreement (as amended, supplemented, modified, restated, replaced or
refinanced from time to time, with the same or a different group of lenders,
issuing banks or bank agents, the "Credit Agreement") dated as of February 1,
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2001 among the Originator, as borrower, the initial lenders, initial issuing
banks and swing line lenders party thereto, Bank of America, as administrative
agent and collateral agent, Bank of America Securities LLC and Xxxxxxx Xxxxx
Barney Inc., as co-lead arrangers and joint book managers, Citicorp USA, Inc.,
as syndication agent, and The Bank of Nova Scotia, as documentation agent.
5. Each of the Seller and the Transferor are guarantors of
LS&Co.'s obligations under the Credit Agreement.
6. To secure their respective obligations to the Agent and the
Lenders under the Credit Agreement and the guaranties executed in connection
therewith, each of the Originator, the Seller and the Transferor have granted to
the Agent, for the benefit of the Lenders, a security interest in certain
collateral, including but not limited to the Receivables (as hereinafter
defined) and proceeds thereof.
7. It is a condition precedent to the making of the initial
purchase under the Receivables Purchase Agreement and to the issuance of the
Notes pursuant to the Indenture that the parties hereto enter into this
Agreement.
8. The parties hereto have agreed to enter into this Agreement
to set forth provisions regarding the allocation of priorities in, and the
enforcement of remedies with respect to, the Purchased Property (as hereinafter
defined) and with respect to the Collateral (as hereinafter defined);
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants contained herein, and for other good and valuable
consideration, receipt of which is hereby acknowledged, it is hereby agreed as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
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following capitalized terms shall have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined). The term "Agreement" shall mean this Consent and Release Agreement, as
the same may be amended, supplemented or otherwise modified from time to time.
"Bank Claim" means all "Obligations" (as such term is defined in
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the Credit Agreement) of the Loan Parties under the Bank Loan Documents.
"Bank Collateral" means all property and interests in property
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now owned or hereafter acquired by Originator or any subsidiary of Originator
(other than Issuer) in or upon which a security interest, lien or mortgage is
granted by Originator or such subsidiary to the Agent under any of the Bank Loan
Documents.
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"Bank Collateral Documents" means all "Collateral Documents" (as
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such term is defined in the Credit Agreement).
"Bank Loan Documents" has the meaning specified for the term
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"Loan Documents" in the Credit Agreement.
"Borrower" has the meaning specified in the Credit Agreement.
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"Business Day" means any day excluding Saturday, Sunday and any
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day which is a legal holiday under the laws of the State of California, Oregon
or the State of New York or is a day on which banking institutions located in
any of such states are closed.
"Claim" means the Bank Claim or the Purchaser Claim, as
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applicable.
"Collateral" means all Bank Collateral which does not
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constitute Purchased Property.
"Collection Account" has the meaning specified in the
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Indenture.
"Collections" means, with respect to any Receivable, all cash
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collections and other proceeds of such Receivable, including without limitation,
all proceeds of Related Security (including late charges, fees and interest
arising thereon, and all recoveries with respect thereto that have been written
off as uncollectible).
"Companies" means, collectively, the Originator, the Seller and
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the Transferor, and "Company" means any one of such Companies.
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"Company Claim" means all of the indebtedness, obligations and
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other liabilities of the Issuer to the Transferor or the Seller, including, but
not limited to, obligations evidenced by any Subordinated Note, and all costs of
collection or enforcement thereof.
"Contract" means any agreement or invoice pursuant to, or
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under which, an Obligor shall be obligated to make payments with respect to any
Receivable.
"Enforcement Period" means, collectively or individually, (i)
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any period from and after an acceleration of the Notes during which the
Indenture Trustee is exercising any remedies under the Indenture to sell or
foreclose on the Purchased Property or (ii) any period from and after a default
under the Bank Loan Documents during which the Bank Agent is exercising any
remedies under the Bank Loan Documents against or with respect to the
Collateral.
"Indenture Supplement" means each supplement to the Indenture
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evidencing the terms applicable to a particular Series of Notes.
"Lenders" means the financial institutions party to the Credit
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Agreement, including any such institutions in their capacity as lenders,
swing-line lenders, issuing banks, co-lead arrangers, joint book managers,
syndication agent or documentation agent.
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"Loan Parties" means, collectively, the Borrower, the Seller and
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the Transferor and each other subsidiary of the Borrower which has guaranteed
the Bank Claim or executed a Bank Collateral Document.
"Lockbox Account" means any lockbox account, concentration
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account, depository account or similar account (including any associated demand
deposit account) established by the Originator, the Seller, the Servicer, the
Transferor or the Issuer and into which any Collections are deposited.
"Noteholders" has the meaning specified in the Indenture.
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"Notes" has the meaning specified in the Indenture.
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"Obligor" means, with respect to any Receivable, the Person or
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Persons obligated to make payments in respect thereof.
"Person" means an individual, corporation, trust (including a
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business trust), joint-stock company, limited liability company, unincorporated
organization, association, partnership, joint venture, governmental authority or
any other entity.
"Purchase Termination Date" means the date on which the Issuer
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ceases to purchase, and the Seller ceases to sell, Receivables under the
Receivables Purchase Agreement.
"Purchased Property" means (i) the Purchased Receivables, (ii)
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the Related Security related to such Purchased Receivables, (iii) Collections of
such Purchased Receivables, (iv) all rights of the Transferor (directly or as
assignee) under the Receivables Sale Agreements, (v) all rights of the Seller
under the Receivables Purchase and Sale Agreement, (vi) the Lockbox Accounts,
the Collection Account and each other account established pursuant to the
Indenture for the benefit of the Issuer or any Noteholders and (vii) all
proceeds of the foregoing.
"Purchased Receivables" means all Receivables now owned or
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hereafter existing and arising through the Purchase Termination Date which are
sold or purported to be sold, contributed or otherwise transferred to the Issuer
under and pursuant to the terms of the Receivables Purchase Agreement. It is
expressly understood that the term Purchased Receivables shall not include
Receivables arising after the Purchase Termination Date.
"Purchaser Claim" means all obligations of any Company
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(including in its capacity as Servicer or otherwise) to, or which have been
assigned to or entered into in favor of, the Indenture Trustee or any Noteholder
arising under any Purchaser Document and all obligations of any Obligor arising
under any Purchased Receivable, including, but not limited to, all sums or
increases now or hereafter advanced or made to or for the benefit of the Issuer
thereunder, any interest thereon, any repayment obligations, indemnity payments,
fees or expenses due thereunder, and any costs of collection or enforcement.
"Purchaser Claim Termination Date" means any date on which (i)
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the Purchaser Claim has been paid and satisfied in full in cash or (ii) the
Indenture shall have been completely terminated, and the Indenture Trustee shall
have released its lien on the Purchased Property in accordance with the
Indenture.
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"Purchaser Documents" means the Receivables Purchase Agreement,
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the Subordinated Note, the Indenture, and each Indenture Supplement.
"Receivable" means, the indebtedness of an Obligor arising under
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a Contract with the Originator from the sale of merchandise or services by or on
behalf of the Originator, whether constituting an account, chattel paper,
instrument or general intangible and shall include the right of payment of any
interest, finance charges, returned check or late charges and other obligations
of such Obligor with respect thereto.
"Records" shall mean all Contracts, purchase orders, invoices,
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customer lists, credit files and other agreements, documents, books, records and
other media for the storage of information (including without limitation tapes,
disks, punch cards, computer software and databases and related property) with
respect to the Receivables, the Related Security and/or the related Obligors;
provided, that Records shall not include any software licenses to the extent
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that the assignment thereof to the Issuer would breach the terms of such
licenses.
"Related Security" shall mean, with respect to each Receivable:
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(i) all security interests or Liens and property subject
thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable
or otherwise, together with all financing statements and security
agreements describing any collateral securing such Receivable;
(ii) all guaranties, letters of credit, insurance, warranties,
indemnities and other agreements or arrangements of whatever character
from time to time supporting or securing the payment obligation of the
Obligor with respect to such Receivable whether pursuant to the
Contract related to such Receivable or otherwise;
(iii) all of the Originator's, the Seller's, the Transferor's
and the Issuer's interest in the specific items of goods (including
Returned Goods), if any, the sale, financing, lease or licensing of
which gave rise to such Receivable;
(iv) all Records related to such Receivable;
(v) all service contracts and other contracts and agreements
associated with such Receivable; and
(vi) all proceeds of any of the foregoing.
"Repurchased Receivables" means any Purchased Receivables which
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are re-assigned from the Issuer to the Seller, the Transferor or the Originator
under and in accordance with the terms of the Receivables Purchase Agreement.
"Returned Goods" means all right, title and interest of any
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Originator, the Seller or the Transferor, as applicable, in and to returned,
repossessed or foreclosed goods and/or merchandise the sale of which gave rise
to a Purchased Receivable.
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"Returned Goods Lien" has the meaning specified in Section
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2.01(a).
"Series" has the meaning specified in the Indenture.
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"Subordinated Note" has the meaning specified in the Receivables
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Purchase Agreement.
"UCC" means the Uniform Commercial Code as from time to time in
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effect in the applicable jurisdictions.
"Unsold Receivables" means any Receivables other than Purchased
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Receivables.
SECTION 1.02. References to Terms Defined in the Purchaser
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Documents and the Bank Loan Documents. Whenever in Section 1.01 a term is
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defined by reference to the meaning specified in any of the Purchaser Documents
or Bank Loan Documents, then, unless otherwise specified herein, such term shall
have the meaning specified in such Purchaser Documents or Bank Loan Documents,
as the case may be, as in existence on the date hereof, without giving effect to
any amendments of such term as may hereafter be agreed to by the parties to such
documents, unless such amendments have been consented to in writing by all of
the parties hereto.
ARTICLE II
INTERCREDITOR PROVISIONS
SECTION 2.01. Priorities of Purchased Property. (a) Notwith-
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standing any provision of the UCC, any applicable law or decision or any of the
Bank Loan Documents or Purchaser Documents, the Agent hereby agrees that, upon
the sale or other transfer of an interest in each Purchased Receivable to the
Issuer, any lien, claim, encumbrance, security interest or other interest
acquired by the Agent or any Lender in such Purchased Receivable and proceeds
thereof (other than the proceeds payable to the Transferor or the Seller by the
Issuer in consideration for such sale or transfer) and any other Purchased
Property relating thereto shall automatically and without further action cease
and be released, and the Agent and the Lenders shall have no lien, claim,
encumbrance, security interest or other interest or right therein; provided,
however, that nothing in this Section 2.01 shall be deemed to constitute a
release by the Agent of:
(i) its lien on and security interest in the proceeds
received by any Company from the sale or other transfer of the
Purchased Receivables (including, without limitation, cash
payments made by the Issuer and any Subordinated Note issued by
the Issuer in favor of, or endorsed to, any Company, each in
connection with such sales);
(ii) any lien on, security interest in or assignment of any
Company Claim;
(iii) any lien, claim, encumbrance, security interest or
other Interest or right the Agent has in any Unsold Receivables
and the proceeds thereof, including
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without limitation, Collections of Unsold Receivables which are
at any time deposited in any Lockbox Accounts or the Collection
Account;
(iv) any lien, claim, encumbrance, security interest or
other interest or right the Agent may have in any Subordinated
Note or in any capital or equity interests of the Issuer which
are owned by any Company or other affiliate or in any other
right of any Company or any affiliate other than the Issuer to
receive any residual value in the Purchased Property from and
after the time that all of the Notes have been paid in full and
the lien of the Indenture has been terminated;
(v) any lien, claim, encumbrance, security interest or
other interest or right the Agent may have in any property of a
Company (including any capital or equity interests of any
Company) which does not constitute Purchased Property; and
(vi) any lien, claim, encumbrance, security interest or
other interest or right the Agent may have in any interest of a
Company in Returned Goods (collectively, a "Returned Goods
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Lien")or in any Repurchased Receivables.
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(b) For purposes of the foregoing, it is expressly understood
that (i) the security interest of the Agent in Returned Goods or Repurchased
Receivables shall not attach while such items are property of the Issuer; (ii)
from and after the payment of all adjustments owed by any Company under the
Receivables Purchase Agreement in respect of such Repurchased Receivables or in
respect of the Receivables relating to such Returned Goods (including by way of
adjustments to the Subordinated Note), the Issuer shall have no further
interests in such Repurchased Receivables and/or Returned Goods and such
Repurchased Receivables and/or Returned Goods shall automatically be deemed to
have been transferred from the Issuer to the Seller without the need for further
action on the part of such parties; and (iii) upon any such transfer to any
Company, the security interest of the Agent shall reattach to such Repurchased
Receivables and/or Returned Goods. It is further expressly understood and agreed
that the interest in goods included in clause (iii) of the definition of Related
Security extends only to rights in respect of the specific items the sale,
financing, lease or licensing of which has given rise to a Receivable and does
not include an interest in goods owned by any Company the subsequent sale,
financing, lease or licensing of which may create a Receivable.
(c) The Agent hereby acknowledges that the Subordinated Note is
subordinated to the payment of the Notes and agrees that its rights against the
Issuer as obligor under the Subordinated Note are subject to the terms thereof.
SECTION 2.02. Respective Interests in Purchased Property and
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Collateral. Each of the Indenture Trustee and the Issuer agrees that it does
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not have and shall not have any property interest, security interest in, lien
upon or interest in any Collateral. Except for all rights of access to and use
of Records and except as otherwise provided in Section 2.01(a), the Agent agrees
that it does not have and shall not have any security interest in, lien upon or
interest in the Purchased Property.
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SECTION 2.03. Distribution of Proceeds. At all times, all
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proceeds of Collateral and Purchased Property (including proceeds received in
the Collection Account) shall be distributed in accordance with the following
procedure:
(a) All collections an d other proceeds of the Collateral shall
be paid or delivered to the Borrower (or its designee) or as otherwise
required by applicable law.
(b) All Collections and other proceeds of the Purchased Property
shall be paid or delivered to the Indenture Trustee for application in
accordance with the terms of the Indenture until the Purchaser Claim
Termination Date, at which time any remaining Collections and proceeds
shall be paid to the Issuer (or its designee) in accordance with the
terms of the Indenture or as otherwise required by applicable law.
SECTION 2.04. Lockbox Accounts; Application of Collections.
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(a) The Indenture Trustee and the Issuer each hereby acknowledge
(i) that the Companies will deliver to the Agent the Subordinated Note
issued by the Issuer, as security for the Bank Claim and (ii) that the
Borrower (or its designee) shall be entitled to Collections of Unsold
Receivables which may be deposited in the Lockbox Accounts or the
Collection Account. From and after the date on which the Issuer ceases
to purchase Receivables from the Seller, the Servicer shall promptly
notify the Indenture Trustee and the Agent of any Collections of Unsold
Receivables which are deposited in any Lockbox Account or the Collection
Account and shall promptly identify such funds to the Indenture Trustee
with instructions to deliver such funds to the Borrower (or its
designee).
(b) For purposes of determining whether specific Collections
have been received on account of Purchased Property or on account of
Unsold Receivables, the parties hereto agree as follows:
(i) All payments made by an Obligor which is obligated to
make payments on Purchased Receivables but is not obligated to
make any payments on Unsold Receivables shall be conclusively
presumed to be payments on account of Purchased Receivables, and
all payments made by an Obligor which is obligated to make
payments on Unsold Receivables but is not obligated to make any
payments on Purchased Receivables shall be conclusively presumed
to be payments on account of Unsold Receivables.
(ii) All payments made by an Obligor which is obligated to
make payments with respect to both Purchased Receivables and
Unsold Receivables shall be applied against the specific
Receivables, if any, which are designated by such Obligor by
reference to the applicable invoice as the Receivables with
respect to which such payments are to be applied, and, absent
such designation, such payments shall be applied against the
oldest outstanding Receivables or portion thereof owed by such
Obligor to the extent such oldest Receivable or portion thereof
is not in dispute.
(c) Subject to the terms and conditions of this Section 2.04(c),
he Indenture Trustee agrees that, unless the Agent has notified the
Indenture Trustee that the Bank Claim has been satisfied in full in
cash, (i) it shall not release its control over the Lockbox Accounts to
the
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Issuer without the prior written consent of the Agent, and (ii) it
shall, from and after the date that the Indenture has been terminated
in accordance with its terms and all obligations of the Issuer
thereunder have been satisfied, transfer to the Agent the Indenture
Trustee's control over the Lockbox Accounts upon receipt by the
Indenture Trustee of a certificate of the Servicer to the effect that
either (x) the Purchaser Claim Termination Date has occurred or (y)
that all outstanding Purchased Receivables have been paid in full in
cash or written-off as uncollectible. If the Agent has so notified the
Indenture Trustee of satisfaction of the Bank Claim, the Indenture
Trustee shall release control of the Lockbox Accounts without any such
consent of, or transfer of control to, the Agent. Any such transfer
shall be without representation, recourse or warranty of any kind on
the part of the Indenture Trustee. Notwithstanding any such transfer,
all Collections and other proceeds subsequently deposited into the
Lockbox Accounts or the Collection Account on account of the
Purchased Property shall be delivered to the Issuer as provided in
Section 2.03(b) above.
(d) In order to effect more fully the provisions of this
Agreement, the parties hereto agree that: (i)in the event that the Agent
shall foreclose or otherwise dispose of any inventory with which
Returned Goods have been commingled, the Indenture Trustee shall be
allowed to have a representative observe such foreclosure or disposition
and the Agent's application of proceeds received therefrom; (ii) in the
event that the Indenture Trustee shall foreclose or otherwise dispose of
any Returned Goods which have been commingled with other inventory, the
Agent shall be allowed to have a representative observe such foreclosure
or disposition and the Indenture Trustee's application of proceeds
therefrom; and (iii) neither the Agent, the Indenture Trustee, the
Issuer nor any Company, shall, before the Purchaser Claim Termination
Date, send any notices to any Obligor of any Receivable directing such
Obligor to remit Collections of any Receivables other than to the
Lockbox Accounts.
(e) The Servicer and the Indenture Trustee each further agree
that they will not cause the Servicer to be replaced by a successor
servicer except (i) in accordance with the terms of the Receivables
Purchase Agreement and (ii) unless such successor servicer has
acknowledged the terms of this agreement and agreed to be bound hereby.
SECTION 2.05. Enforcement Actions. The parties hereto agree
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that during an Enforcement Period:
(a) Subject to any applicable restrictions in the Purchaser
Documents, the Indenture Trustee may take any action to liquidate the
Purchased Property or to foreclose or realize upon or enforce any of
the rights of the Issuer with respect to the Purchased Property without
the prior written consent of the Agent or any Lender or any other party
hereto; provided, however, that with respect to Returned Goods, the
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Indenture Trustee shall not take any action to foreclose or realize
upon or to enforce any rights it may have with respect to any Purchased
Property constituting Returned Goods without the prior written consent
of the Agent, unless either (i) such Returned Goods have been segregated
from, and are separately identifiable from, the Collateral or (ii)
the Bank Claim shall have been first paid and satisfied in full in cash.
The Indenture Trustee shall not have any rights to liquidate or
foreclose on any Unsold Receivables.
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(b) Subject to any applicable restrictions in the Bank Loan
Documents, the Agent may, at its option and without the prior written
consent of the other parties hereto, take any action to accelerate
payment of the Bank Claim and to foreclose or realize upon or enforce
any of its rights with respect to (i) the Collateral and (ii) any
Purchased Property constituting Returned Goods which has been
redelivered to LS&Co. and become commingled with other inventory of
LS&Co.; provided, however, that the Agent shall apply proceeds of any
Purchased Property consisting of Returned Goods as provided in Section
2.03 above.
SECTION 2.06. Access to and Use of Collateral. The Indenture
---------------------------------
Trustee and the Agent hereby agree that, notwithstanding the priorities set
forth in this Agreement, the Indenture Trustee and the Agent shall have the
following rights of access to and use of the Purchased Property and the
Collateral, respectively:
(a) Subject to any applicable restrictions in the Purchaser
Documents, the Indenture Trustee may enter one or more premises of any
Company, whether leased or owned, at any time during reasonable business
hours, without force or process of law and without obligation to pay
rent or compensation to any Company or the Issuer, whether before,
during or after an Enforcement Period, in order to have access to and
use of all Records located thereon and may have access to and use of
any other property to which such access and use are granted under the
Purchaser Documents, in each case provided that such use is for any
purpose permitted under the Purchaser Documents or for the purposes of
enforcing the rights of the Indenture Trustee with respect to the
Purchased Property.
(b) Subject to any applicable restrictions in the Bank Loan
Documents, the Agent may enter one or more premises of any Company,
whether leased or owned, at any time during reasonable business hours,
without force or process of law and without obligation to pay rent
or compensation to any Company, the Issuer or the Indenture Trustee,
whether before, during or after an Enforcement Period, and may have
access to and use of all Records located thereon, provided that such
use is for any purpose permitted under the Bank Loan Documents or for
the purposes of enforcing the Agent's rights (i) with respect to the
Collateral and (ii) subject to the limits provided in Section 2.01
above, with respect to Purchased Property consisting of Returned Goods.
SECTION 2.07. Agency for Perfection and Control. The Indenture
---------------------------------
Trustee and the Agent hereby appoint each other as agent for purposes of
perfecting by possession or by control their respective security interests and
ownership interests and liens on any Collateral (which may include any
Subordinated Note)and Purchased Property to the extent that such security or
ownership interests cannot be perfected by the filing of a financing statement.
In the event the Indenture Trustee, to the actual knowledge of an officer
responsible for overseeing compliance with this Agreement, obtains possession of
any of the Collateral, the Indenture Trustee shall hold such Collateral in trust
and, at the request of the Servicer or the Agent, shall deliver such Collateral
to the Agent. In the event that the Agent, to the actual knowledge of an officer
responsible for overseeing compliance with this Agreement, obtains possession of
any of the Purchased Property, the Agent shall hold such Purchased Property in
trust and, at the request
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of the Servicer or the Indenture Trustee, shall deliver such Purchased Property
to the Indenture Trustee.
SECTION 2.08. UCC Notices. In the event that any party hereto
-----------
shall be required by the UCC or any other applicable law to give notice to the
other of intended disposition of Purchased Property or Collateral, respectively,
such notice shall be given in accordance with Section 3.01 hereof and ten (10)
days' notice shall be deemed to be commercially reasonable.
SECTION 2.09. Independent Credit Investigations. None of the
----------------------------------
Indenture Trustee or the Agent or any of their respective directors, officers,
agents or employees shall be responsible to the other or to any other Person for
the solvency, financial condition or ability of the Issuer or the Companies to
repay the Notes, the Purchaser Claim or the Bank Claim, as applicable, or for
the value of the Purchased Property or the Collateral, or for statements of any
Company or the Issuer oral or written, or for the validity, sufficiency or
enforceability of the Purchaser Claim, the Bank Claim, the Purchaser Documents,
the Bank Loan Documents, the Indenture Trustee's lien on the Purchased Property
or the Agent's security interest in the Collateral or any other collateral. The
Agent and the Indenture Trustee have entered into their respective agreements
with the Companies and the Issuer, as applicable, based upon their own
independent investigations. None of the Agent or the Indenture Trustee makes any
warranty or representation to the other nor does it rely upon any representation
of the other with respect to matters identified or referred to in this Section
2.09.
SECTION 2.10. Limitation on Liability of Parties to Each Other.
-------------------------------------------------
The Indenture Trustee and the Agent each undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the Indenture
Trustee or the Agent. Except as expressly provided in this Agreement, the Agent
shall have no liability to the Indenture Trustee and the Indenture Trustee shall
have no liability to the Agent, except in each case for liability arising from
the gross negligence or willful misconduct of such party or its representatives.
In no event shall the Indenture Trustee or the Agent be liable to any other
party hereto for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits).
SECTION 2.11. Marshalling of Assets. Nothing in this Agreement
---------------------
will be deemed to require either the Indenture Trustee or the Agent (a) to
proceed against certain property securing any or all of the Bank Claim or the
Purchaser Claim prior to proceeding against other property securing any such
Claim or (b) to marshal the Collateral or the Purchased Property (as applicable)
upon the enforcement of the Agent's or the Indenture Trustee's rights or
remedies under the Bank Loan Documents or Purchaser Documents, as applicable.
SECTION 2.12. Effect upon Bank Loan Documents and Purchaser
--------------------------------------------------
Documents. By executing this Agreement, the Companies and the Issuer agree to be
---------
bound by the provisions hereof as they relate to the relative rights of the
Agent and the Indenture Trustee with respect to the Collateral and the Purchased
Property. Each of the Companies, the Issuer, the Indenture Trustee and the Agent
acknowledge that the provisions of this Agreement shall not give the Companies
or the Issuer any substantive rights as against any other Person and that
nothing in this Agreement shall amend, modify, change or supersede the terms of
(x) the Bank Loan
11
Documents as between the Borrower, the other Companies, the Agent and the
Lenders or (y) the Purchaser Documents as among the Companies, the Issuer and
the Indenture Trustee. The Agent, individually and on behalf of the Lenders,
hereby confirms that the Purchaser Documents in existence as of the date hereof
have been furnished to it and that the Bank Loan Documents expressly permit the
transactions contemplated thereby and hereby consents to the execution, delivery
and performance by each Company of such Purchaser Documents. Notwithstanding the
foregoing, the Agent, on the one hand, and the Indenture Trustee, on the other
hand, agree that, as between themselves, to the extent the terms and provisions
of the Bank Loan Documents or the Purchaser Documents are inconsistent with the
terms and provisions of this Agreement, the terms and provisions of this
Agreement shall control.
SECTION 2.13. Further Assurances. Concurrently with the
--------------------
execution hereof, the Agent shall execute or otherwise authorize the filing of
UCC-3 partial releases in the form of Exhibit A hereto to evidence the release
---------
of Collateral described in Section 2.01 hereof to be filed in the jurisdictions
noted in Exhibit A. Each of the parties hereto agrees to take such actions as
---------
may be reasonably requested by any other party, whether before, during or after
an Enforcement Period, in order to effect the rules of distribution and
allocation set forth above in this Article II.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Notices. All notices and other communications
-------
provided for hereunder shall, unless otherwise stated herein, be in writing
(including telex and facsimile communication) and shall be personally delivered
or sent by certified mail, postage prepaid, or overnight courier or facsimile,
to the intended party at the address or facsimile number of such party set forth
below or at such other address or facsimile number as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be effective (a) if personally delivered, when received,
(b) if sent by certified mail, four Business Days after having been deposited in
the mail, postage prepaid, (c) if sent by overnight courier, two Business Days
after having been given to such courier, unless sooner received by the addressee
and (d) if transmitted by facsimile, when sent, upon receipt confirmed by
telephone or electronic means. Notices and communications sent hereunder on a
day that is not a Business Day shall be deemed to have been sent on the
following Business Day.
If to LS&Co. or the Transferor: 0000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Treasurer,
Telecopy: (000) 000-0000;
If to LS Financial: 0000 Xxxx Xxxxx, Xxxxxx, Xxxxxx 00000,
Attention: Director, Telecopy: (000) 000-0000;
If to the Indenture Trustee: 000 Xxxx Xxxxxx, 00xx Xxxxx,
XX, XX 00000, Attn: Structured Finance, Levi Xxxxxxx Series
2001-A, Telecopy (000) 000-0000; and
If to the Agent: 0000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000,
Attn: Xxxxxxxx Carry (Fax)(000) 000-0000;
or, as to any such party, at such other address as shall be designated by such
party in a written
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notice to each of the other parties hereto.
SECTION 3.02. Agreement Absolute. This Agreement shall be and
------------------
remain absolute and unconditional under any and all circumstances, and no acts
or omissions on the part of any other party to this Agreement shall affect or
impair the agreement of any party to this Agreement, unless otherwise agreed to
in writing by all of the parties hereto. This Agreement shall be applicable both
before and after the filing of any petition by or against any Company or the
Issuer under the Bankruptcy Code and all references herein to any Company or the
Issuer shall be deemed to apply to a debtor-in-possession or trustee for such
party and all allocations of payments among the parties hereto shall, subject to
any court order to the contrary, continue to be made after the filing of such
petition on the same basis that the payments were to be applied prior to the
date of the petition.
SECTION 3.03. Successors and Assigns. This Agreement shall be
----------------------
binding upon and inure to the benefit of each of the parties hereto and their
respective successors and assigns. The successors and assigns for the Companies
and the Issuer shall include a debtor-in-possession or trustee of or for such
party. The successors and assigns for the Agent, the Servicer and the Indenture
Trustee, as the case may be, shall include any successor Agent, Indenture
Trustee or Servicer, as the case may be, appointed under the terms of the Bank
Loan Documents or the Purchaser Documents, as applicable. Each of the Agent and
the Indenture Trustee, as the case may be, agrees to not transfer any interest
it may have in the Bank Loan Documents or the Purchaser Documents, as the case
may be, or to delegate its role as agent or trustee, as applicable, unless such
transferee or delegate has been notified of the existence of this Agreement and
has agreed to be bound hereby.
SECTION 3.04. Third-Party Beneficiaries. The terms and
-------------------------
provisions of this Agreement shall be for the sole benefit of the parties hereto
and their respective successors and assigns and no other Person shall have any
right, benefit or priority by reason of this Agreement.
SECTION 3.05. Amendments, Etc. No amendment or waiver of any
---------------
provision of this Agreement shall in any event be effective unless the same
shall be in writing and signed by all the parties hereto, and any such amendment
or waiver shall be effective only in the specific instance and or the specific
purpose for which given.
SECTION 3.06. Section Titles. The article and section headings
--------------
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
SECTION 3.07. Severability. Any provision of this Agreement that
------------
is 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 or thereof
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 3.08. Execution in Counterparts. This Agreement may be
-------------------------
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature
13
page of this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 3.09. Governing Law. THIS AGREEMENT, INCLUDING THE
---------------
RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING 5-1401 OF THE
GENERAL OBLIGATIONS LAW BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
SECTION 3.10. Submission to Jurisdiction. (i) Each of the
----------------------------
parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the Bank Loan Documents or Purchaser
Documents to which it is a party, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted by
law, in such federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any of the Bank Loan Documents or
Purchaser Documents shall affect any right that any party may otherwise have to
bring any action or proceeding relating to this Agreement or any Bank Loan
Documents or Purchaser Documents to which it is a party in the courts of any
jurisdiction.
(ii) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
Bank Loan Documents or Purchaser Documents to which it is a party in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 3.11. Consent to Service of Process. Each party to this
-----------------------------
Agreement irrevocably consents to service or process by personal delivery,
certified mail, postage prepaid or overnight courier. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 3.12. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT
--------------------
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER OR RELATING TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY COURSE OR
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), ACTIONS OF ANY
OF THE PARTIES HERETO OR ANY OTHER RELATIONSHIP EXISTING IN CONNECTION WITH THIS
AGREEMENT, AND
14
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
15
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
LEVI XXXXXXX FUNDING, LLC, as Transferor
By: _________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
LEVI XXXXXXX FINANCIAL CENTER
CORPORATION, as Seller and Servicer
By: _________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
LEVI XXXXXXX & CO., as Borrower and
Originator
By: _________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
LEVI XXXXXXX RECEIVABLES FUNDING,
LLC, as Issuer
By: _________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
CITIBANK, N.A., not in its individual capacity but
solely as Indenture Trustee
By: _________________________________
Name:
Title:
BANK OF AMERICA, N.A., as Agent
By: _________________________________
Name:
Title:
Exhibit A to Consent and Release Agreement
------------------------------------------
See Attached.
