Exhibit 4.4
COLLATERAL TRUSTEE AGREEMENT
COLLATERAL TRUSTEE AGREEMENT (as amended and modified from time to time,
this "Agreement") dated as of February 4, 2003, among WARNACO, INC., a Delaware
corporation ("Warnaco"), as issuer under the Indenture (as defined below), THE
WARNACO GROUP, a Delaware corporation ("Group"), as parent guarantor under the
Indenture, each of the other subsidiaries of Group listed on the signature pages
hereof or that become a party hereto pursuant to Section 5.10, as subsidiary
guarantors under the Indenture (the "Subsidiary Guarantors" and together with
Group, the "Guarantors"), XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association, as indenture trustee under the Indenture (in such
capacity, the "Indenture Trustee"), and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as collateral trustee (in such capacity, the "Collateral
Trustee").
Reference is made to the Indenture, dated as of February ___, 2003 among
Warnaco, the Guarantors and the Indenture Trustee (as such Indenture may be
modified, amended and restated, supplemented or otherwise modified pursuant to
the terms thereof, the "Indenture"), which governs the rights and duties of
Warnaco, the Guarantors and the Holders under the Second Lien Notes due 2008
(the "Second Lien Notes") issued pursuant to the Indenture. Warnaco has entered
into the Indenture as issuer of the Second Lien Notes. Each of the Guarantors
has entered into the Indenture as guarantor, pursuant to which they have,
jointly and severally, guaranteed the obligations under the Second Lien Notes
for the benefit of the Holders. Simultaneously with the execution and delivery
of this Agreement, Warnaco, the Guarantors and the Collateral Trustee have also
entered into the Pledge and Security Agreement (as defined in the Indenture),
and the Collateral Trustee and certain of the Loan Parties (as defined in the
Indenture) have entered into the Mortgages (as defined in the Indenture) and
have entered or may enter into other documents or instruments pursuant to which
a Lien (as defined in the Indenture) is granted by Warnaco or a Guarantor to
secure the Secured Obligations (as defined in the Indenture) or under which
rights or remedies with respect to any such Lien are governed, as the same may
be amended, renewed, extended, supplemented or modified from time to time.
Reference is also made to the Intercreditor Agreement to be executed
simultaneously with this Agreement, pursuant to which the Senior Secured Parties
(as defined in the Indenture) and the Secured Parties (as defined in the
Indenture) have agreed, among other things, to share certain collateral and
payments on the terms and conditions set forth therein, which collateral and
payments have been provided by Warnaco and the Guarantors as security for the
Secured Parties under the Collateral Documents.
Warnaco, the Guarantors, and the Indenture Trustee on behalf of the Holders
have requested the Collateral Trustee to act as collateral trustee for the
Secured Parties hereunder and under the Collateral Documents. The Collateral
Trustee is willing to act as collateral trustee for the Secured Parties
hereunder and under the Collateral Documents on the terms and subject to the
conditions set forth in this Agreement.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Certain Definitions. (a) Terms used and not defined herein
shall have the meanings specified in the Indenture or in the Pledge and Security
Agreement.
(b) As used in this Agreement, the capitalized terms defined in the
recitals hereto shall have the meanings specified herein, and the following
terms have the meanings specified below:
"Intercreditor Agreement" means the Intercreditor Agreement dated
as of February [__], 2003 among Citicorp North America, Inc., as Senior
Agent, Xxxxx Fargo Bank Minnesota, National Association, as Indenture
Trustee, Wilmington Trust Company, as Collateral Trustee, Warnaco Group,
Inc. and each subsidiary of The Warnaco Group, Inc. party thereto.
"Pledge and Security Agreement" means the Pledge and Security
Agreement dated as of February ___, 2003, among Warnaco Inc., as a Grantor
and Each Other Grantor From Time to Time Party Thereto, and Wilmington
Trust Company, as Collateral Trustee, as amended, amended and restated,
modified, supplemented or modified from time to time.
"Trust Estate" means the right, title and interest of the Secured
Parties under the Collateral Documents.
(c) The words "hereof", "herein" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provisions hereof. All references herein to Articles or Sections
shall, unless otherwise specified, be deemed to refer to Articles and Sections
of this Agreement. As used in this Agreement, the singular shall include the
plural as the context requires and the following words and phrases shall have
the following meanings: (a) "including" means "including but not limited to",
(b) "provisions" means "provisions, terms, covenants and/or conditions" and(c)
reference to any agreement is to be construed as a reference to that agreement
as it may from time to time be amended, amended and restated, supplemented or
modified.
ARTICLE II
Declaration and Acceptance of Trust, Remedies
SECTION 2.01 Declaration and Acceptance of Trust. The Indenture Trustee, on
behalf of the Holders, requests that Wilmington Trust Company act as collateral
trustee for the Holders. The Collateral Trustee hereby declares, and each of
Warnaco, the Guarantors and the Indenture Trustee, for itself and on behalf of
the Holders, agrees that the Collateral Trustee holds the Trust Estate as
trustee in trust under this Agreement for the benefit of the Holders and the
Indenture Trustee as provided herein. By acceptance of the benefits of this
Agreement, the Indenture and the Notes, the Indenture Trustee and each Holder
(whether or not a signatory hereto) (i) consent to the appointment of the
Collateral Trustee as trustee hereunder, (ii) confirm that the Collateral
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Trustee shall have the authority to act as the exclusive agent of such Holder
(x) for enforcement of any remedies under or with respect to any Collateral
Document, (y) the giving or withholding of any consent or approval relating to
any Collateral or any obligations of Warnaco or any Guarantor with respect
thereto and (z) for the execution and delivery of the Intercreditor Agreement
and the performance of all obligations in connection with the Intercreditor
Agreement and (iii) agree that, except as provided in the Loan Documents, they
shall not take any action to enforce any of such remedies or give any such
consents or approvals.
ARTICLE III
Pledge and Security Agreement; Intercreditor Agreement
SECTION 3.01 Execution and Delivery of the Collateral Documents. On the
date hereof, the Collateral Trustee shall execute and deliver the Pledge and
Security Agreement and each of the other Collateral Documents to which it is a
party, and it shall thereafter act as collateral trustee on behalf of the
Secured Parties on the terms and conditions as provided herein and therein.
SECTION 3.02 Execution, Delivery and Performance of the Intercreditor
Agreement. On the date hereof, the Collateral Trustee shall execute and deliver
the Intercreditor Agreement as collateral trustee on behalf of the Secured
Parties on the terms and conditions as provided herein and therein and from and
after the date hereof shall perform all of its obligations thereunder for itself
and as agent of each Holder.
ARTICLE IV
Collateral Trustee
SECTION 4.01 Delivery of Secured Documents. On the date hereof, Warnaco
shall deliver to the Collateral Trustee a true and complete copy of each of the
Loan Documents as in effect on the date hereof. Promptly upon the execution
thereof, Warnaco shall deliver to the Collateral Trustee a true and complete
copy of any and all amendments, modifications or supplements to any Loan
Document and of any Loan Documents entered into after the date of this
Agreement.
SECTION 4.02 Information as to Holders. Warnaco shall deliver to the
Collateral Trustee from time to time upon request of the Collateral Trustee a
list setting forth, by each Loan Document, (i) the aggregate principal amount
outstanding thereunder, (ii) the interest rate or rates then in effect
thereunder, and (iii) the names of the Holders thereof and the unpaid principal
amount thereof owing to each such Holder. Warnaco shall furnish to the
Collateral Trustee within 30 days of a request therefor a list setting forth the
name and address of each party to whom notices must be sent by the Collateral
Trustee under the Loan Documents, and Warnaco agrees to furnish promptly to the
Collateral Trustee any changes or additions to such list.
SECTION 4.03 Compensation and Expenses. Warnaco agrees to pay to the
Collateral Trustee, from time to time upon demand, (i) compensation (which shall
not be limited by any provision of law in regard to compensation of a trustee of
an express trust) for its services
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hereunder and for administering the Trust Estate, as heretofore agreed between
the Collateral Trustee and Warnaco, and (ii) all of the reasonable fees, costs
and expenses of the Collateral Trustee (including, without limitation, the
reasonable fees and disbursements of its counsel and such special counsel as the
Collateral Trustee elects to retain) (a) arising in connection with the
preparation, execution, delivery, modification and termination of this Agreement
and the other Loan Documents, or the enforcement of any provisions hereof and
thereof, or (b) incurred or required to be advanced in connection with the
administration of the Trust Estate or the preservation, protection or defense of
the Collateral Trustee's rights under this Agreement and the other Loan
Documents and in and to the Collateral and the Trust Estate. The obligations of
Warnaco under this Section 4.03 shall survive the termination of this Agreement.
SECTION 4.04 Stamp and Other Similar Taxes. Warnaco agrees to indemnify and
hold harmless the Collateral Trustee and each other Secured Party from any
present or future claim or liability for any mortgage, stamp or other similar
tax and any penalties or interest with respect thereto, which may be assessed,
levied or collected by any jurisdiction in connection with this Agreement and
the other Loan Documents. The obligations of Warnaco under this Section 4.04
shall survive the termination of this Agreement.
SECTION 4.05 Filing Fees, Excise Taxes, Etc. Warnaco agrees to pay or to
reimburse the Collateral Trustee for any and all amounts in respect of all
search, filing, recording and registration fees, taxes, excise taxes and other
similar imposts which may be payable or determined to be payable in respect of
the execution, delivery, performance and enforcement of this Agreement and the
other Loan Documents to the extent the same may be paid or reimbursed by Warnaco
without subjecting the Collateral Trustee or any Secured Party to any civil or
criminal liability. The obligations of Warnaco under this Section 4.05 shall
survive the termination of this Agreement.
SECTION 4.06 Indemnification. (a) Each of Warnaco and the Guarantors,
jointly and severally, agrees to pay, indemnify, and hold the Collateral Trustee
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement and the other Loan Documents;
provided, however, that the Collateral Trustee shall not be indemnified under
this clause to the extent such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements are found
by final judgment of a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of the Collateral Trustee.
(b) In any suit, proceeding or action brought by the Collateral Trustee
with respect to the Collateral or for any sum owing in respect of Secured
Obligations, or to enforce the provisions of this Agreement or any other Loan
Document, each of Warnaco and the Guarantors, jointly and severally, shall save,
indemnify and keep the Collateral Trustee and each of the other Secured Parties
harmless from and against all expense, loss or damage suffered by reason of any
defense, set-off, counterclaim, recoupment or reduction of liability whatsoever
incurred or suffered by the Collateral Trustee or such other Secured Party, as
the case may be, arising out of a breach by Warnaco or any Guarantor of any
obligation set forth in this Agreement or any other Loan Document, and all such
obligations of Warnaco and each Guarantor shall be and remain
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enforceable against and only against Warnaco and such Guarantor and shall not be
enforceable against the Collateral Trustee or any other Secured Party. The
provisions of this Section 4.06. shall survive the termination of this
Agreement.
SECTION 4.07 Further Assurances. At any time and from time to time, upon
the written request of the Collateral Trustee, and at the expense of Warnaco or
the Guarantors, each of Warnaco and any Guarantor shall promptly execute and
deliver any and all such further instruments and documents and take such further
action as the Collateral Trustee reasonably deems necessary or desirable in
obtaining the full benefits of this Agreement.
SECTION 4.08 Certain Duties. The Collateral Trustee's sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the UCC or otherwise, shall be to deal
with such Collateral in the same manner as it customarily deals with similar
collateral of other parties held by it. The Collateral Trustee shall promptly
deliver to the Indenture Trustee a copy of each notice, request, report or other
document delivered to it pursuant to any Loan Document to which it is a party.
SECTION 4.09 Exculpatory Provisions. (a) The Collateral Trustee shall not
be responsible in any manner whatsoever for the correctness of any recitals,
statements, representations or warranties herein contained, all of which are
made solely by Warnaco or the Guarantors. The Collateral Trustee makes no
representations as to the value or condition of the Trust Estate or any part
thereof, or as to the title of Warnaco or the Guarantors thereto or as to the
security afforded by this Agreement or any other Loan Document, or as to the
validity, execution (except its own execution thereof), enforceability, legality
or sufficiency of this Agreement, any other Loan Document or of the Secured
Obligations, and the Collateral Trustee shall incur no liability or
responsibility with respect to any such matters. The Collateral Trustee shall
not be responsible for insuring the Trust Estate or for the payment of taxes,
charges, assessments or Liens upon the Trust Estate or otherwise as to the
maintenance of the Trust Estate.
(b) The Collateral Trustee shall not be required to ascertain or inquire as
to the performance by Warnaco, any Guarantor or any other person of any of the
covenants or agreements contained herein or in any other Loan Document. Whenever
it is necessary, or in the opinion of the Collateral Trustee advisable, for the
Collateral Trustee to ascertain the amount of Secured Obligations then held by a
Secured Party, the Collateral Trustee may rely on a certificate of such Secured
Party as to such amount, and if any Secured Party shall not provide such
information to the Collateral Trustee, such Secured Party shall not be entitled
to receive payments hereunder (in which case the amounts otherwise payable to
such Secured Party shall be held in trust for such Secured Party) until such
Secured Party has provided such information to the Collateral Trustee.
(c) The Collateral Trustee shall not be personally liable for any action
taken or omitted to be taken by it in accordance with this Agreement or any Loan
Document, except for such actions or omissions that constitute gross negligence
or willful misconduct by the Collateral Trustee. The Collateral Trustee and its
affiliates may make credit extensions to, accept deposits from and generally
engage in any kind of business with Warnaco and its parent or Subsidiaries as
though the Collateral Trustee were not the collateral trustee hereunder.
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SECTION 4.10 Delegation of Duties. The Collateral Trustee may execute any
of the trusts or powers hereof and perform any duty hereunder either directly or
by or through agents or attorneys-in-fact which it shall select with due care.
The Collateral Trustee shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it.
SECTION 4.11 Reliance by Collateral Trustee. (a) Whenever in the
administration of the trusts of this Agreement the Collateral Trustee shall deem
it necessary or advisable that a matter be proved or established in connection
with the taking of any action hereunder by the Collateral Trustee, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may
be deemed to be conclusively provided or established by a certificate of an
officer of Warnaco delivered to the Collateral Trustee, and such officer's
certificate shall be full warranty to the Collateral Trustee for any action
taken, suffered or omitted in reliance thereon.
(b) The Collateral Trustee may consult with counsel, and any opinion of
such counsel (which may be in-house counsel for the Collateral Trustee) shall be
full and complete authorization and protection in respect of any action taken or
suffered by it hereunder in accordance therewith. The Collateral Trustee shall
have the right at any time to seek instructions concerning the administration of
the Trust Estate from any court of competent jurisdiction.
(c) The Collateral Trustee may rely, and shall be fully protected in
acting, upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order, bond or other paper or document which
it has no reason to believe to be other than genuine and to have been signed or
presented by the proper party or parties or, in the case of telecopies and
telexes, to have been sent by the proper party or parties. The Collateral
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Collateral Trustee and conforming to the requirements of this
Agreement or any other Loan Document.
(d) The Collateral Trustee shall not be under any obligation to exercise
any of the rights or powers vested in the Collateral Trustee by this Agreement
unless the Collateral Trustee shall have been provided adequate security and
indemnity against the costs, expenses and liabilities which may be incurred by
it in compliance with such request or direction, including, without limitation,
such reasonable advances as may be requested by the Collateral Trustee.
SECTION 4.12 Limitations on Duties of Collateral Trustee. The Collateral
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in accordance with the direction of the Indenture Trustee. Except as
herein otherwise expressly provided, the Collateral Trustee shall not be under
any obligation to take any action which is discretionary with the Collateral
Trustee under the provisions hereof except upon the written request of the
Indenture Trustee. The Collateral Trustee shall make available for inspection
and copying by the Indenture Trustee each certificate or other paper furnished
to the Collateral Trustee by Warnaco or any Guarantor under or in respect of
this Agreement or any other Loan Document or any portion of the Trust Estate.
SECTION 4.13 Funds to be Held in Trust. All funds received by the
Collateral Trustee under or pursuant to any provision of this Agreement shall be
held in trust for the purposes for which they were paid or are held in
accordance with the provisions hereof.
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SECTION 4.14 Resignation of the Collateral Trustee. (a) The Collateral
Trustee may at any time, by giving 30 days' prior written notice to Warnaco and
the Indenture Trustee, resign and be discharged of the responsibilities hereby
created, such resignation to become effective upon the earlier of (i) 60 days
from the date of such notice and (ii) the appointment of a successor collateral
trustee or collateral trustees by the Required Holders (or any agent or
representative at their request). If no successor collateral trustee or
collateral trustees shall be appointed and approved within 60 days from the date
of the giving of the aforesaid notice of resignation, the Collateral Trustee
(notwithstanding the termination of all of its other duties and obligations
hereunder by reason of such resignation) shall, or any Secured Party or Warnaco
may, apply to any court of competent jurisdiction to appoint a successor
collateral trustee or collateral trustees (which may be an individual or
individuals) to act until such time, if any, as a successor collateral trustee
or collateral trustees shall have been appointed as above provided. Any
successor collateral trustee or collateral trustees so appointed by such court
shall immediately and without further act be superseded by any successor
collateral trustee or collateral trustees approved by the Required Holders (or
any agent or representative at their request) as above provided.
(b) If at any time the Collateral Trustee shall resign or otherwise become
incapable of acting, or if at any time a vacancy shall occur in the office of
Collateral Trustee for any other cause, a successor collateral trustee or
collateral trustees may be appointed by the Required Holders (or any agent or
representative at their request), and the powers, duties, authority and title of
the predecessor collateral trustee or collateral trustees terminated and
canceled without procuring the resignation of such predecessor collateral
trustee or collateral trustees, and without any other formality (except as may
be required by applicable law) other than appointment and designation of a
successor collateral trustee or collateral trustees in writing duly
acknowledged, delivered to the predecessor collateral trustee or collateral
trustees, and filed for record in each public office, if any, in which this
Agreement is required to be filed.
(c) The appointment and designation referred to in Section 4.14(b) shall,
after any required filing, be full evidence of the right and authority to make
the same and of all the facts therein recited, and this Agreement shall vest in
such successor collateral trustee or collateral trustees, without any further
act, deed or conveyance, all of the estate and title of its predecessor or their
predecessors, and upon such filing for record the successor collateral trustee
or collateral trustees shall become fully vested with all the estates,
properties, rights, powers, trusts, duties, authority and title of its
predecessor or their predecessors. Such predecessor or predecessors shall,
nevertheless, on the written request of the Required Holders (or any agent or
representative at their request) or their or its successor collateral trustee or
collateral trustees, execute and deliver an instrument transferring to such
successor or successors all the estates, properties, rights, powers, trusts,
duties, authority and title of such predecessor or predecessors hereunder and
shall deliver all securities and funds held by it or them to such successor
collateral trustee or collateral trustees.
(d) Any required filing for record of the instrument appointing a successor
collateral trustees as hereinabove provided shall be at the expense of Warnaco.
SECTION 4.15 Status of Successors to Collateral Trustee. Except as
permitted by Section 4.14, every successor to the Collateral Trustee appointed
pursuant to Section 4.14 shall
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be a bank or trust company in good standing and having power so to act,
incorporated under the laws of the United States or any State thereof or the
District of Columbia, and having its principal corporate trust office within the
forty-eight contiguous States, and shall also have capital, surplus and
undivided profits of not less than $50,000,000.
SECTION 4.16 Merger of Collateral Trustee. Any corporate person into which
the Collateral Trustee may be merged, or with which it may be consolidated, or
any company resulting from any merger or consolidation to which the Collateral
Trustee shall be a party, shall be the Collateral Trustee under this Agreement
without the execution or filing of any paper or any further act on the part of
the parties hereto.
SECTION 4.17 Appointment of Additional and Separate Collateral Trustee.
Whenever (i) the Collateral Trustee shall deem it necessary or prudent in order
to conform to any law of any jurisdiction in which all or any part of the
Collateral shall be situated or to make any claim or bring any suit with respect
to or in connection with the Collateral, or (ii) the Collateral Trustee shall be
advised by counsel satisfactory to it that it is so necessary or prudent in the
interest of the Secured Parties, then in any such case, subject to the
Intercreditor Agreement, the Collateral Trustee shall execute and deliver from
time to time all instruments and agreements necessary or proper to constitute
another bank or trust company or one or more persons approved by the Collateral
Trustee either to act as additional trustee or trustees of all or any part of
the Trust Estate, jointly with the Collateral Trustee, or to act as separate
trustee or trustees of all or any part of the Trust Estate, in any such case
with such powers as may be provided in such instruments or agreements, and to
vest in such bank, trust company or person as such additional trustee or
separate trustee, as the case may be, any property, title, right or power of the
Collateral Trustee deemed necessary or advisable by the Collateral Trustee. Each
of Warnaco and the Guarantors hereby consents to all actions taken by the
Collateral Trustee under the foregoing provisions of this Section 4.17.
ARTICLE V
Miscellaneous
SECTION 5.01 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Article Eight of the Indenture and Section 5.3 of the
Intercreditor Agreement.
SECTION 5.02 Notices. All notices, requests and demands (i) to or upon
Warnaco or any Guarantor shall be addressed to or care of Warnaco at Warnaco's
notice address set forth below:
The Warnaco Group Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
Email: [_______]
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with a copy to the General Counsel of Group;
(ii) to the Indenture Trustee at:
Xxxxx Fargo Bank Minnesota,
National Association
Corporate Trust Services
MAC X0000-000
Xxxxx & Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
(iii) to the Collateral Trustee at:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Corporate Trust Administration
Telecopy No.: (000) 000-0000
SECTION 5.03 No Waiver by Course of Conduct, Cumulative Remedies. The
Collateral Trustee shall not by any act (except by a written instrument pursuant
to Section 5.01), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder. No failure to exercise, nor any delay in
exercising, on the part of the Collateral Trustee, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Collateral Trustee of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy that the
Collateral Trustee would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any other rights or remedies provided by law.
SECTION 5.04 Successors and Assigns. This Agreement shall be binding upon
the successors and assigns of each party hereto and shall inure to the benefit
of each such party and its assigns.
SECTION 5.05 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Signature pages may be detached from multiple counterparts and attached to a
single counterpart so that all signature pages are attached to the same
document. Delivery of an executed counterpart of a signature page to this
Agreement by telecopy shall be effective as delivery of a manually executed
signature page.
SECTION 5.06 Severability. Any provisions 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, and any
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such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 5.07 Section Headings. The Article and Section titles contained in
this Agreement are, and shall be, without substantive meaning or content of any
kind whatsoever and are not part of the agreement of the parties hereto.
SECTION 5.08 Entire Agreement. This Agreement together with the other Loan
Documents represents the entire agreement of the parties and supersedes all
prior agreements and understandings relating to the subject matter hereto
concerning the Secured Obligations.
SECTION 5.09 Governing Law. This Agreement and the rights and obligations
of the parties hereto shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York.
SECTION 5.10 Jurisdiction, Etc. (a) 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 other Loan 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 fullest 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 shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) 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 other Loan
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 5.11 Waiver of Jury Trial. Each party hereto irrevocably waives all
right to trial by jury in any action, proceeding or counterclaim (whether based
on contract, tort or otherwise) arising out of or relating to this Agreement,
any of the other Loan Documents or the actions of any party in the negotiation,
administration, performance or enforcement thereof.
SECTION 5.12 Subsidiary Guarantors. If, pursuant to Section 13.04 of the
Indenture, any Person who is not a Subsidiary Guarantor becomes a Subsidiary
Guarantor under the Indenture, such Subsidiary shall execute and deliver to the
Collateral Trustee (with a copy to the Administrative Agent) a Joinder Agreement
substantially in the form of Annex 1 (Form of
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Joinder Agreement) hereto and shall thereafter for all purposes be a party
hereto and have the same rights, benefits and obligations as a Guarantor party
hereto on the Effective Date.
[Signature Pages follow]
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IN WITNESS WHEREOF, each of the undersigned has caused this Collateral
Trust Agreement to be duly executed and delivered as of the date first above
written.
The Issuer:
WARNACO INC.,
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
The Parent Guarantor:
THE WARNACO GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
The Subsidiary Guarantors:
000 Xxxxxx Xxxxxx Inc.
A.B.S. Clothing Collection, Inc.
Abbeville Manufacturing Company
Authentic Fitness Corporation
Authentic Fitness On-Line, Inc.
Authentic Fitness Products Inc.
Authentic Fitness Retail Inc.
CCC Acquisition Corp.
X.X. Xxxxxxxx Company
Xxxxxx Xxxxx Jeanswear Company
CKJ Holdings, Inc.
Designer Holdings Ltd.
Xxxxxxx Street, Inc.
Jeanswear Holdings, Inc.
Kai Jay Manufacturing Company
Myrtle Avenue, Inc.
Outlet Holdings, Inc.
Outlet Stores, Inc.
Penhaligon's by Request, Inc.
Rio Sportswear, Inc.
Ubertech Products, Inc.
12
Warnaco International, Inc.
Warnaco International, LLC
Warnaco Men's Sportswear Inc.
Warnaco Puerto Rico, Inc.
Warnaco Sourcing Inc.
Warnaco U.S. Inc.
Warner's De Costa Rica Inc.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Indenture Trustee,
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
WILMINGTON TRUST COMPANY,
as Collateral Trustee,
By: /s/ Xxxxx X. XxXxxxxx
--------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Authorized Signer
13
