[Exhibit 10.5]
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MASTER AGREEMENT OF SALE
Dated as of September 30, 1998
between
XXXXXX XXXXX JEANSWEAR COMPANY,
as Originator
and
XXXXXXX STREET, INC.,
as Buyer and as Servicer
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TABLE OF CONTENTS
PAGE
ARTICLE I
PURCHASES AND SALES
1.1. Purchases and Sales...............................................2
1.2. Timing of Purchases...............................................3
1.3. Consideration for Purchases.......................................3
1.4. Purchase and Sale Termination Date................................3
1.5. Intention of the Parties..........................................3
ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1. Calculation of Purchase Price.....................................4
ARTICLE III
PAYMENT OF PURCHASE PRICE
3.1. Payment of Purchase Price..........................................6
3.2. Settlement as to Specific Receivables..............................6
3.3. Reconveyance of Receivables........................................7
ARTICLE IV
CONDITIONS OF PURCHASES
4.1. Conditions Precedent to this Agreement and the Initial Purchase....8
4.2. Certification as to Representations and Warranties.................8
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ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE ORIGINATOR
5.1. Representations and Warranties; Covenants`1.......................9
ARTICLE VI
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
6.1. Rights of the Buyer...............................................9
6.2. Responsibilities of the Originator................................9
6.3. Further Action Evidencing Purchases..............................10
6.4. Application of Collections.......................................11
ARTICLE VII
PURCHASE AND SALE TERMINATION EVENTS
7.1. Purchase and Sale Termination Events............................12
7.2. Remedies........................................................13
ARTICLE VIII
INDEMNIFICATION
8.1. Indemnities by the Originator..................................14
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ARTICLE IX
MISCELLANEOUS
9.1. Amendments, etc................................................16
9.2. Notices, etc...................................................16
9.3. No Waiver; Cumulative Remedies.................................17
9.4. Binding Effect; Assignability..................................17
9.5. Costs, Expenses and Taxes......................................17
9.6. Governing Law and Jurisdiction.................................17
9.7. Waiver of Jury Trial...........................................18
9.8. Headings.......................................................18
9.9. Execution in Counterparts......................................18
9.10. Acknowledgment and Agreement...................................18
SCHEDULES
SCHEDULE I Office Locations
SCHEDULE II Trade Names
EXHIBITS
EXHIBIT A Form of Purchase Report
EXHIBIT B Representations and Warranties
EXHIBIT C Covenants
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MASTER AGREEMENT OF SALE
THIS MASTER AGREEMENT OF SALE (as amended, supplemented or
otherwise modified and in effect from time to time, this "Agreement"), dated as
of September 30, 1998, is between XXXXXX XXXXX JEANSWEAR COMPANY, a Delaware
corporation (together with its successors and assigns, "Warnaco"), as originator
(together with its successors and assigns in such capacities, the "Originator")
and XXXXXXX STREET, INC., a Delaware corporation (together with its successors
and assigns in such capacities, "Xxxxxxx Street"), as buyer (together with its
successors and assigns in such capacity, the "Buyer") and as servicer (together
with its successors and assigns in such capacity, the "Servicer").
Definitions
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in, or incorporated by reference
into, the Purchase and Sale Agreement of even date herewith (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Purchase and Sale Agreement"), between Xxxxxxx Street and Warnaco Operations
Corporation, a Delaware corporation (together with its successors and assigns,
"Warnaco Operations").
Recitals
1. The Originator wishes to continue selling certain Receivables
and Related Rights (collectively, the "Purchased Assets") from time to time to
the Buyer, and the Buyer is willing, on the terms and subject to the conditions
set forth herein, to purchase such Receivables and Related Rights from the
Originator.
2. The Buyer intends to sell to Warnaco Operations the Purchased
Assets acquired hereunder pursuant to the Purchase and Sale Agreement in order
to finance in part its purchases of Purchased Assets hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
PURCHASES AND SALES
1.1. Purchases and Sales. On the terms and subject to the
conditions set forth in this Agreement (including Article IV), and in
consideration of the Purchase Price, the Originator agrees to sell to the Buyer,
and does hereby sell to the Buyer, and the Buyer agrees to purchase from the
Originator, and does hereby purchase from the Originator, without recourse and
without regard to collectibility, all of the Originator's right, title and
interest in, to and under:
(a) each Receivable in existence and owned by the Originator as
of the close of the Originator's business on the Closing Date;
(b) each Receivable generated by the Originator from the close of
the Originator's business on the Closing Date to and including the Purchase and
Sale Termination Date;
(c) all rights to, but not the obligations under, all Related
Security;
(d) all monies due or to become due with respect to any of the
foregoing;
(e) all books and records related to any of the foregoing; and
(f) all proceeds thereof (as defined in the applicable UCC)
received on or after the date hereof including, without limitation, all funds
which either are received by the Originator or the Servicer from or on behalf of
the Obligors in payment of any amounts owed (including, without limitation,
finance charges, interest and all other charges) in respect of Receivables, or
are applied to such amounts owed by the Obligors.
All purchases hereunder shall be made without recourse, but shall
be made pursuant to and in reliance upon the representations, warranties and
covenants of the Originator set forth in this Agreement and each other
Transaction Document. The Buyer's foregoing commitment to purchase such
Receivables (the "Purchased Receivables") and the proceeds and rights described
in subsections (c) through (f) of this Section 1.1 (collectively, the "Related
Rights") is herein called the "Purchase Facility".
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1.2. Timing of Purchases. The Originator's entire right, title
and interest in (i) each Receivable in existence and owned by the Originator as
of the close of the Originator's business on the Closing Date and (ii) all
Related Rights with respect thereto shall be deemed to have been sold to the
Buyer on the Closing Date. After the Closing Date, each Receivable owned by the
Originator and all Related Rights shall be sold and assigned to the Buyer
(without any further action) upon the creation of such Receivable by the
Originator.
1.3. Consideration for Purchases. On the terms and subject to
the conditions set forth in this Agreement, the Buyer agrees to make all
Purchase Price payments to the Originator in accordance with Article III.
1.4. Purchase and Sale Termination Date. The "Purchase and Sale
Termination Date" shall be the earlier to occur of (a) the date of the
termination of this Agreement pursuant to Section 7.2 and (b) the Payment Date
immediately following the day on which the Originator shall have given notice to
the Buyer (with a copy to the Agent) that the Originator desires to terminate
this Agreement. As used herein, "Payment Date" means (i) the Closing Date and
(ii) each Business Day thereafter that the Originator is open for business.
1.5. Intention of the Parties. It is the express intent of the
parties hereto that the transfers of the Receivables and Related Rights by the
Originator to the Buyer, as contemplated by this Agreement be, and be treated
as, sales and not as loans secured by the Receivables and Related Rights. If,
however, notwithstanding the intent of the parties, such transfers are deemed to
be loans, the Originator hereby grants to the Buyer a first priority security
interest in all of the Originator's right, title and interest in and to the
Receivables and the Related Rights now existing and hereafter created, all
monies due or to become due and all amounts received with respect thereto, and
all proceeds thereof, to secure all of the Originator's obligations hereunder.
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ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1. Calculation of Purchase Price. On each Monthly Report Date,
the Servicer shall deliver to the Buyer, the Agent and the Co-Agent a report in
substantially the form of Exhibit A (each such report being herein called a
"Purchase Report") with respect to the matters set forth therein and the Buyer's
purchases of Purchased Assets from the Originator that:
(a) are to be made on the Closing Date (in the case of the
Purchase Report to be delivered on the Closing Date), or
(b) were made during the period commencing on the Monthly Report
Date immediately preceding such Monthly Report Date to (but not including) such
Monthly Report Date (in the case of each subsequent Monthly Report).
The "Purchase Price" (to be paid by the Buyer to the Originator
in accordance with the terms of Article III) for any Purchased Assets that are
acquired by the Buyer hereunder shall be equal to (i) the Net Face Amount of the
Purchased Assets minus (ii) the Factoring Charge related thereto. As used
herein:
"Net Face Amount" shall mean, with respect to any
Purchased Asset, the face amount of such Purchased Asset less all Trade
Discounts, if applicable, and less an established rate for chargebacks
of eight percent (8%).
"Factoring Charge" shall mean, with respect to any
Purchased Asset, an amount equal to the sum of (i) the product of (x)
the Net Face Amount of such Purchased Asset multiplied by (y) seven
percent (7%) divided by Accounts Receivable Turns plus (ii) the Net Face
Amount of such Purchased Asset multiplied by a seventy-five one
hundredth (0.75) percent administration charge.
"Accounts Receivable Turns" shall be six (6) for
Accounting Year 1998 or as otherwise agreed upon between the Originator
and the Buyer (with notice to the Agent and the Co-Agent).
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"Accounting Year" shall mean the 52-53 week year which the
Originator and the Buyer shall agree upon, which year shall always end
on a Saturday.
"Trade Discounts" shall mean, with respect to any
Purchased Asset, all predetermined discounts extended by the Originator
to the Originator's customers for any reason whatsoever.
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ARTICLE III
PAYMENT OF PURCHASE PRICE
3.1. Payment of Purchase Price. On the terms and subject to the
conditions set forth in this Agreement, the Buyer agrees to pay to the
Originator (i) on the Closing Date, the Purchase Price for all Purchased Assets
in existence and owned by the Originator at the close of business of the
Originator on the Closing Date and (ii) on each Business Day after the Closing
Date, the Purchase Price for all Purchased Assets with respect to which a sale
is made to the Buyer hereunder.
3.2. Settlement as to Specific Receivables and Dilution.
(a) If on the day of purchase of any Receivable from the
Originator hereunder, any of the representations or warranties of the Originator
set forth in paragraph (d), (g) or (z) of Exhibit B is not true with respect to
such Receivable or as a result of any action or inaction of the Originator, on
any day any of such representations or warranties set forth in paragraph (d),
(g) or (z) is no longer true with respect to such a Receivable, then the
Purchase Price with respect to such Receivables shall be reduced by an amount
equal to the Outstanding Balance of such Receivable and shall be accounted to
the Originator as provided in subsection (c) below; provided that if the Buyer
thereafter receives payment on account of Collections due with respect to such
Receivable, the Buyer promptly shall deliver such funds to the Originator.
(b) If, on any day, the Outstanding Balance of any Receivable
purchased hereunder is reduced or adjusted as a result of any defective,
rejected, returned goods or services, or any discount or other adjustment made
by the Originator, the Buyer or the Servicer or any offset, setoff or dispute
between the Originator or the Servicer and an Obligor as indicated on the books
of the Buyer (or, for periods prior to the Closing Date, the books of the
Originator), then the Purchase Price with respect to such Receivable shall be
reduced by the amount of such net reduction and shall be accounted to the
Originator as provided in subsection (c) below.
(c) Any reduction in the Purchase Price of any Receivable
pursuant to subsection (a) or (b) above shall be applied as a credit for the
account of the Buyer against the Purchase Price of Receivables subsequently
purchased by the Buyer from the Originator hereunder; provided, however, if
there are no purchases of Receivables from the Originator (or insufficiently
large purchases of Receivables) to
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create a Purchase Price sufficient to so apply such credit against, the amount
of such credit shall be paid in cash to the Buyer by the Originator in the
manner to be determined at such time between the Buyer and the Originator;
provided, further, that at any time (y) when a Termination Event or Unmatured
Termination Event exists under the Receivables Purchase Agreement or (z) on or
after the Purchase and Sale Termination Date, the amount of any such credit
shall be paid by the Originator to the Buyer by deposit in immediately available
funds into the Collection Account for application by the Servicer to the same
extent as if Collections of the applicable Receivable in such amount had
actually been received on such date.
(d) Each Purchase Report (other than the Purchase Report
delivered on the Closing Date) shall include, in respect of the Receivables sold
by the Originator, a calculation of the aggregate reductions described in
subsection (a) or (b) relating to such Receivables since the last Purchase
Report delivered hereunder, as indicated on the books of the Buyer (or, for such
period prior to the Closing Date, the books of the Originator).
3.3. Reconveyance of Receivables. In the event that the
Originator has paid to the Buyer the full Outstanding Balance of any Receivable
pursuant to Section 3.2, the Buyer shall reconvey such Receivable to the
Originator, without representation or warranty, but free and clear of all liens
created by the Buyer.
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ARTICLE IV
CONDITIONS OF PURCHASES
4.1. Conditions Precedent to this Agreement and the Initial
Purchase. The effectiveness of this Agreement and the purchase hereunder of the
Receivables in existence on the Closing Date are each subject to the conditions
precedent that the Buyer shall have received, in form and substance satisfactory
to the Buyer, the following (the date on which such conditions have been
satisfied in full, the "Closing Date"):
(a) This Agreement, the Purchase and Sale Agreement and the
Receivables Purchase Agreement, duly executed by the parties thereto, together
with evidence that all conditions precedent thereunder shall have been met; and
(b) Such other agreements, instruments, certificates, opinions
and other documents as the Buyer shall reasonably request.
Payment by the Buyer of the Purchase Price for the Receivables in
existence at the close of business of the Originator on the Closing Date shall
be deemed to be the Buyer's agreement that all such conditions precedent have
been satisfied or waived.
4.2. Certification as to Representations and Warranties. The
Originator, by accepting the Purchase Price related to each purchase of
Purchased Assets, shall be deemed to have certified that the representations and
warranties contained in Exhibit B are true and correct on and as of such day,
with the same effect as though made on and as of such day.
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ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE ORIGINATOR
5.1. Representations and Warranties; Covenants. In order to
induce the Buyer to enter into this Agreement and to make purchases hereunder,
the Originator hereby makes the representations and warranties and hereby agrees
to perform and observe the covenants set forth in Exhibits B and C,
respectively.
ARTICLE VI
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
6.1. Rights of the Buyer. The Originator hereby authorizes the
Buyer and the Servicer or their respective designees to take any and all steps
in the Originator's name necessary or desirable, in their respective
determination, to collect all amounts due under any and all Receivables and
Related Rights, including, without limitation, endorsing the Originator's name
on checks and other instruments representing Collections and enforcing such
Receivables and the provisions of the related Contracts that concern payment
and/or enforcement of rights to payment.
Upon acquisition by the Buyer of any Purchased Asset, the Buyer
shall become entitled to all of the ownership, title, right, securities or
guaranties possessed by the Originator in respect to such Purchased Assets,
including the right to stoppage-in-transit and to replevin in any of the
merchandise covered by such Purchased Assets including, but not limited to, any
and all of the merchandise that may be rejected, returned, or reconsigned and in
any new claim or account created through the resale or exchange of merchandise
and including the right to collect and receive all moneys due thereunder.
6.2. Responsibilities of the Originator. Anything herein to the
contrary notwithstanding:
(a) The Originator agrees to (A) direct, and hereby grants to
each of the Buyer and its assignees the authority to direct, all Obligors of
Receivables purchased by the Buyer to make payments of such Receivables directly
to the Collection Account or to post office boxes to which only the Collection
Account
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Bank has access, and (B) to transfer any Collections that it receives directly,
into the Collection Account within two (2) Business Days of receipt thereof, and
agrees that all such Collections shall be deemed to be received in trust for the
Buyer.
(b) The Originator shall perform its obligations hereunder, and
the exercise by the Buyer or its assignees of their respective rights hereunder
shall not relieve the Originator from such obligations.
(c) None of the Buyer, the Servicer or any assignee of the Buyer
shall have any obligation or liability to any Obligor or any other third party
with respect to any Receivables, Contracts related thereto or any other related
agreements, nor shall the Buyer, the Servicer or any assignee of the Buyer be
obligated to perform any of the obligations of the Originator thereunder.
(d) The Originator hereby grants to the Buyer, the Servicer and
the assignees of the Buyer an irrevocable power of attorney, with full power of
substitution, coupled with an interest, to take in the name of the Originator
all steps necessary or advisable to indorse, negotiate or otherwise realize on
any writing or other right of any kind held or transmitted by the Originator or
transmitted or received by the Buyer (whether or not from the Originator) in
connection with any Receivable or Related Right.
6.3. Further Action Evidencing Purchases. The Originator agrees
that from time to time, at its expense, it will promptly execute and deliver all
further instruments and documents, and take all further action that the Buyer or
the Servicer may reasonably request in order to perfect, protect or more fully
evidence the Receivables (and the Related Rights) purchased by the Buyer
hereunder, or to enable the Buyer to exercise or enforce any of its rights
hereunder or under any other Transaction Document. Without limiting the
generality of the foregoing, upon the request of the Buyer, the Originator will
(a) execute and file such financing or continuation statements, or amendments
thereto or assignments thereof, and such other instruments or notices, as may be
necessary or appropriate and (b) xxxx the summary master control data processing
records with a legend indicating that the Purchased Assets have been sold to the
Buyer and subsequently sold by the Buyer under the Purchase and Sale Agreement.
The Originator hereby authorizes the Buyer or its assignees to
file one or more financing or continuation statements, and amendments thereto
and assignments thereof, relative to all or any of the Receivables (and the
Related Rights) now owned by or hereafter acquired by the Originator. If the
Originator fails to perform any of its agreements or obligations under this
Agreement, the Buyer or its
10
assignees may (but shall not be required to) itself perform, or cause
performance of, such agreement or obligation, and the expenses of the Buyer or
its assignees incurred in connection therewith shall be payable by the
Originator as provided in Section 8.1.
In furtherance of the foregoing, upon written request of Buyer,
the Originator agrees to furnish the Buyer with originals or copies of any
invoices or evidence of shipment of goods underlying the Purchased Assets.
6.4. Application of Collections. Any payment by an Obligor in
respect of any indebtedness owed by it to the Originator shall, except as
otherwise specified by such Obligor or otherwise required by contract or law and
unless otherwise instructed by the Buyer or the Administrator, be applied first,
as a Collection of any Receivables of such Obligor, in the order of the age of
such Receivables, starting with the oldest of such Receivables, and second, to
any other indebtedness of such Obligor.
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ARTICLE VII
PURCHASE AND SALE TERMINATION EVENTS
7.1. Purchase and Sale Termination Events. Each of the following
events or occurrences described in this Section 8.1 shall constitute a
"Purchase and Sale Termination Event":
(a) A Purchase and Sale Termination Event under the Purchase and Sale
Agreement shall have occurred; or
(b) The Originator shall fail to make when due any payment or deposit
to be made by the Originator under this Agreement within three (3) Business
Days of the date on which such payment or deposit is due; or
(c) Any representation or warranty made or deemed to be made by the
Originator (or any of its officers) under or in connection with this
Agreement, any other Transaction Document or any other information or
report delivered pursuant hereto or thereto shall prove to have been
incorrect or untrue in any material respect when made or deemed made or
delivered; or
(d) The Originator shall fail to perform or observe in any material
respect any other term, covenant or agreement contained in this Agreement
on its part to be performed or observed and such failure shall remain
unremedied for thirty (30) days after the Originator shall have obtained
actual knowledge or notice thereof; or
(e)(i) The Originator shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors;
or any proceeding shall be instituted by or against the Originator seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for all or any substantial part of its property
and, in the case of any such proceeding instituted against it (but not
instituted by it), such proceeding shall remain undismissed or unstayed for
a period of 60 days, or any of the actions sought in such proceeding
(including the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or for any
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substantial part of its property) shall occur; or (ii) the Originator shall
take any corporate action to authorize any of the actions set forth in
clause (i) above in this Section 7.1(e); or
(f) either: (i) a contribution failure shall occur with respect to any
Benefit Plan sufficient to give rise to a lien under Section 302(f) of
ERISA, (ii) the Internal Revenue Service shall file a notice of a lien
asserting a claim or claims pursuant to the Internal Revenue Code with
regard to any of the assets of the Originator or any ERISA Affiliate, or
(iii) the Pension Benefit Guaranty Corporation shall file notice of a lien
asserting a claim pursuant to ERISA with regard to any assets of the
Originator or an ERISA Affiliate.
(g) There shall have occurred any event that would, with the giving of
notice or the passing of time or both, have a Material Adverse Effect.
7.2. Remedies.
(i) Optional Termination. Upon the occurrence of a
Purchase and Sale Termination Event, the Buyer shall have the option by
notice to the Originator (with a copy to Warnaco Operations and the Agent)
to declare the Purchase and Sale Termination Date to have occurred.
(ii) Remedies Cumulative. Upon any termination of the
Purchase Facility pursuant to this Section 7.2, the Buyer shall have, in
addition to all other rights and remedies under this Agreement or
otherwise, all other rights and remedies provided under the UCC of each
applicable jurisdiction and other applicable laws, which rights shall be
cumulative.
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ARTICLE VIII
INDEMNIFICATION
8.1. Indemnities by the Originator. Without limiting any other rights
which the Buyer or any Purchase and Sale Indemnified Party may have
hereunder or under applicable law, the Originator hereby agrees to
indemnify the Buyer and each of its assigns, officers, directors, employees
and agents (each of the foregoing Persons being individually called a
"Purchase and Sale Indemnified Party"), forthwith on demand, from and
against any and all claims, damages, expenses, costs, losses and
liabilities (including Attorney Costs) (all of the foregoing being
collectively referred to as "Purchase and Sale Indemnified Amounts")
awarded against or incurred by any of them arising out of or resulting from
this Agreement (whether directly or indirectly), the use of the proceeds
acquired by the Originator hereunder, the ownership of the Receivables and
Related Rights or in respect of any Receivable, Related Security or
Contract (other than with respect to the collectibility of the Receivables
for credit-related reasons). Without limiting or being limited by the
foregoing, and subject to the exclusions set forth below, the Originator
shall pay on demand to each Purchase and Sale Indemnified Party any and all
amounts necessary to indemnify such party from and against any and all
Purchase and Sale Indemnified Amounts resulting from any of the following:
(a) the transfer by the Originator of an interest in any Receivable or
Related Right to any Person other than the Buyer;
(b) the breach of any representation or warranty made by the
Originator under or in connection with this Agreement or any other
Transaction Document, or any information or report delivered by the
Originator pursuant hereto or thereto which shall have been false or
incorrect in any respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law,
rule or regulation with respect to any Receivable or the related Contract,
or the nonconformity of any Receivable or the related Contract with any
such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Buyer an ownership
interest in the Receivables and the Related Rights free and clear of any
Adverse Claim;
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(e) the failure of the Originator to file with respect to itself, or
any delay by the Originator in filing, financing statements or other
similar instruments or documents under the UCC of any applicable
jurisdiction or other applicable laws with respect to any Receivables or
purported Receivables or any Related Rights, whether at the time of any
purchase or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in
bankruptcy) of the Obligor to the payment of any Receivable or purported
Receivable (including, without limitation, a defense based on such
Receivable or the related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its
terms), or any other claim resulting from the goods or services related to
any such Receivable or the furnishing of or failure to furnish such goods
or services;
(g) any product liability claim arising out of or in connection with
goods or services that are the subject of any Receivable;
(h) any litigation, proceeding or investigation against the
Originator;
(i) any tax or governmental fee or charge (other than any tax excluded
pursuant to the proviso below), all interest and penalties thereon or with
respect thereto, and all out-of-pocket costs and expenses, including the
reasonable fees and expenses of counsel in defending against the same,
which may arise by reason of the purchase or ownership of the Receivables
or any Related Right connected with any such Receivables; and
(j) any failure of the Originator to perform its duties or obligations
in accordance with the provisions of this Agreement or any other
Transaction Document;
excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of a
Purchase and Sale Indemnified Party, (ii) any indemnification which has the
effect of recourse for non-payment of the Receivables due to credit reasons
to any indemnitor (except as otherwise specifically provided under this
Section 8.1) and (iii) any tax based upon or measured by net income or
gross receipts.
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ARTICLE IX
MISCELLANEOUS
9.1. Amendments, etc.
(a) The provisions of this Agreement may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing
and consented to by the Buyer, the Servicer, the Agent and the Originator
(with respect to an amendment) or by the Buyer (with respect to a waiver or
consent by it).
(b) No failure or delay on the part of the Buyer, the Servicer, the
Originator or any third-party beneficiary in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to
or demand on the Buyer, the Servicer or the Originator in any case shall
entitle it to any notice or demand in similar or other circumstances. No
waiver or approval by the Buyer or Servicer under this Agreement shall,
except as may otherwise be stated in such waiver or approval, be applicable
to subsequent transactions. No waiver or approval under this Agreement
shall require any similar or dissimilar waiver or approval thereafter to be
granted hereunder.
9.2. Notices, etc. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (which shall
include facsimile communication) and be sent or delivered to each party
hereto at its address set forth below or at such other address as shall be
designated by such party in a written notice to the other parties hereto.
Notices and communications by facsimile shall be effective when sent (and
shall be followed by hard copy sent by first-class mail) and notices and
communications sent by other means shall be effective when received.
If to the Buyer:
----------------
XXXXXXX STREET, INC.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Assistant Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
16
If to the Originator:
---------------------
XXXXXX XXXXX JEANSWEAR COMPANY
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
9.3. No Waiver; Cumulative Remedies. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
9.4. Binding Effect; Assignability. This Agreement shall be binding
upon and inure to the benefit of the Buyer and the Originator and their
respective successors and permitted assigns; provided, however, that the
Originator may not assign its rights hereunder or any interest herein or
delegate its duties hereunder without the prior consent of the Buyer and
the Agent. This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms, and shall
remain in full force and effect until the date after the Purchase and Sale
Termination Date on which the Originator has received payment in full for
all Receivables and Related Rights purchased pursuant to Section 1.1
hereof. The rights and remedies with respect to any breach of any
representation and warranty made by the Originator pursuant to Article V
and the indemnification and payment provisions of Article VIII and Section
9.5 shall be continuing and shall survive any termination of this
Agreement.
9.5. Costs, Expenses and Taxes. In addition to the obligations of the
Originator under Article XIII, the Originator agrees to pay on demand:
(a) all reasonable costs and expenses in connection with the
enforcement of this Agreement and the other Transaction Documents; and
(b) all stamp and other similar taxes and fees payable or determined
to be payable in connection with the execution, delivery, filing and
recording of this Agreement or the other Transaction Documents, and agrees
to indemnify each Purchase and Sale Indemnified Party against any
liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
9.6. Governing Law and Jurisdiction. This Agreement shall be deemed
to be a contract made under and governed by the internal laws of the State
of
17
New York (including for such purpose Sections 5-1401 and 5-1402 of the
General Obligations Law of the State of New York) except to the extent that
the validity or perfection of a security interest or remedies hereunder, in
respect of any particular collateral are governed by the laws of a
jurisdiction other than the State of New York.
9.7. Waiver of Jury Trial. Each of the parties hereto waives its
rights to a trial by jury of any claim or cause of action based upon or
arising out of or related to this agreement or the transactions
contemplated hereby in any action, proceeding or other litigation of any
type brought by any of the parties against any other party or parties,
whether with respect to contract claims, tort claims or otherwise. Each of
the parties hereto agrees that any such claim or cause of action shall be
tried by a court trial without a jury. Without limiting the foregoing, each
of the parties hereto further agrees that its respective right to a trial
by jury is waived by operation of this section as to any action,
counterclaim or other proceeding that seeks, in whole or in part, to
challenge the validity or enforceability of this agreement or any provision
hereof. This waiver shall apply to any subsequent amendments, renewals,
supplements or modifications to this agreement.
9.8. Headings. The captions and headings of this Agreement and any
Exhibit, Schedule or Annex hereto are for convenience of reference only and
shall not affect the interpretation hereof or thereof.
9.9. 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.
9.10. Acknowledgment and Agreement. By execution below, the
Originator expressly acknowledges and agrees that all of the Buyer's
rights, title, and interests in, to, and under this Agreement shall be
assigned by the Buyer to Warnaco Operations pursuant to the Purchase and
Sale Agreement, and the Originator consents to such assignment. Each of the
parties hereto acknowledges and agrees that Warnaco Operations is a
third-party beneficiary of the rights of the Buyer arising hereunder and
under the other Transaction Documents to which the Originator is a party.
18
IN WITNESS WHEREOF, the parties have caused this Master Agreement of
Sale to be executed by their respective officers thereunto duly authorized, as
of the date first above written.
XXXXXX XXXXX JEANSWEAR COMPANY,
as Originator
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President and Treasurer
XXXXXXX STREET, INC., as Buyer and
as Servicer
By: /s/ Xxxx X. Xxxxxxx
---------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Secretary
19
SCHEDULE I
OFFICE LOCATIONS
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SCHEDULE II
TRADE NAMES
Xxxxxx Xxxxx Xxxxxx Jeans
Xxxxxx Xxxxx Womens Jeans
Xxxxxx Xxxxx Mens Jeans
21
EXHIBIT A
[FORM OF PURCHASE REPORT]
A-1
EXHIBIT B
REPRESENTATIONS AND WARRANTIES
1. Representations and Warranties of the Originator. The Originator
represents and warrants as follows:
(a) The Originator is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and
is duly qualified to do business and is in good standing as a foreign
corporation in every jurisdiction where the nature of its business requires
it to be so qualified, except where the failure to be so qualified would
not have a Material Adverse Effect.
(b) The execution, delivery and performance by the Originator of this
Agreement and the other Transaction Documents to which it is a party: (i)
are within its corporate powers; (ii) have been duly authorized by all
necessary corporate action; (iii) do not contravene in any material respect
or result in a default under or conflict with: (A) its charter or by-laws,
(B) any law, rule or regulation applicable to it, (C) any indenture, loan
agreement, mortgage, deed of trust or other agreement or instrument to
which it is a party or by which it is bound, or (D) any law or any order,
writ, judgment, award, injunction or decree binding on or affecting it or
any of its property; and (iv) do not result in or require the creation of
any Adverse Claim upon or with respect to any of its properties. The
Agreement and the other Transaction Documents to which it is a party have
been duly executed and delivered by the Originator.
(c) No authorization, approval or other action by, and no notice to or
filing with, any Governmental Authority or other Person is required for the
due execution, delivery and performance by the Originator of the Agreement
or any other Transaction Document to which it is a party, other than the
Uniform Commercial Code filings referred to in Exhibit II to the
Receivables Purchase Agreement, all of which shall have been filed on or
before the date of the first purchase hereunder.
(d) Each sale of Receivables and Related Rights made by the Originator
pursuant to this Agreement shall constitute a valid sale, transfer and
assignment thereof to the Buyer, enforceable against creditors of, and
purchasers from, the Originator; and each of the Agreement and the other
Transaction Documents to which the Originator is a party constitutes its
legal, valid and binding obligation of the Originator enforceable against
the Originator in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency,
B-1
reorganization or other similar laws from time to time in effect affecting
the enforcement of creditors' rights generally and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(e) There is no litigation or, to the Originator's knowledge, any
proceeding or investigation pending before any court, regulatory body,
arbitrator, administrative agency, or other tribunal or governmental
instrumentality (a) asserting the invalidity of any Transaction Document,
(b) seeking to prevent the sale of Receivables and Related Rights to the
Buyer or the consummation of any of the other transactions contemplated by
any Transaction Document or (c) seeking any determination or ruling that
could reasonably be expected to have a Material Adverse Effect.
(f) No proceeds acquired by the Originator under this Agreement will
be used by the Originator to acquire any equity security of a class that is
registered pursuant to Section 12 of the Securities Exchange Act of 1934.
(g) The Originator is the legal and beneficial owner of each
Receivable (together with the Related Rights) which is to be sold to the
Buyer hereunder, free and clear of any Adverse Claim. Whenever the Buyer
makes a purchase hereunder, it shall have acquired a valid and enforceable
perfected ownership interest in such Receivable and in the Related
Security, Collections and other proceeds with respect thereto, free and
clear of any Adverse Claim. No effective financing statement or other
instrument similar in effect covering any such Receivable is on file in any
recording office, except those filed in favor of (A) the Buyer pursuant to
this Agreement, (B) Warnaco Operations pursuant to the Purchase and Sale
Agreement and (C) the Agent pursuant to the Receivables Purchase Agreement.
(h) Each Purchase Report (if prepared by the Originator or one of its
Affiliates, or to the extent that information contained therein is supplied
by the Originator or an Affiliate), information, exhibit, financial
statement, document, book, record or report furnished or to be furnished at
any time by or on behalf of the Originator to the Agent in connection with
the Agreement or any other Transaction Document to which it is a party is
or will be complete and accurate in all material respects as of its date or
as of the date so furnished.
(i) The Originator's principal place of business and chief executive
office (as such terms are used in the UCC) is located at the address set
forth in Section 9.2 hereof, and the office where it keeps its records
concerning the
B-2
Receivables are located at the address specified on Schedule I (or at such
other locations, notified to Servicer and the Agent in accordance with
paragraph 1(b) of Exhibit C, where all actions required by Section 6.3 of
this Agreement have been taken and completed).
(j) The Originator is not in violation of any order of any court,
arbitrator or Governmental Authority, the violation of which would have a
Material Adverse Effect on the Originator.
(k) No proceeds acquired by the Originator under this Agreement will
be used for any purpose that violates any applicable law, rule or
regulation, including Regulations T, U or X of the Federal Reserve Board.
(l) Unless otherwise identified to the Buyer in the related Purchase
Report, each Receivable sold hereunder is on the date of sale an Eligible
Receivable.
(m) No transaction contemplated hereby acquires compliance with any
sales bulk act or similar law.
(n) The Originator has complied in all material respects with the
Credit and Collection Policy.
(o) The Originator has complied in all material respects with all of
the terms, covenants and agreements contained in the Agreement and the
other Transaction Documents that are applicable to it.
(p) The Originator's complete corporate name is set forth in the
preamble to the Agreement, and it does not use and has not since its
incorporation used any other corporate name, trade name, doing-business
name or fictitious name, except as set forth on Schedule II to this
Agreement.
(q) The Originator is not an "investment company," or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. In addition, the Originator is
not a "holding company," a "subsidiary company" of a "holding company" or
an "affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(r) The Originator has reviewed the areas within its business and
operations which could be adversely affected by, and has developed or is
developing
B-3
a program to address on a timely basis, the risk that certain computer
applications used by the Originator may be unable to recognize and perform
properly date-sensitive functions involving dates prior to and after
December 31, 1999 (the "Year 2000 Problem"). Based on such review and
program, the Year 2000 Problem could not reasonably be expected to have any
Material Adverse Effect.
(s) The Originator has filed all material tax returns and reports
required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes which
are not yet delinquent or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
generally accepted accounting principles shall have been set aside on its
books.
(t) The Originator has not failed to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the ownership
of its properties or to the conduct of its business, which violation or
failure to obtain would be reasonably likely to have a Material Adverse
Effect, and there are no labor controversies pending against the Originator
that have had (or are reasonably likely to have) a Material Adverse Effect.
(u) The Originator is in compliance, in all material respects, with
the requirements of (i) all applicable laws, rules, regulations, and orders
of all governmental authorities (including, without limitation, Regulation
Z, laws, rules and regulations relating to usury, truth in lending, fair
credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy and all other consumer laws applicable to
the Receivables and related Contracts) (excluding with respect to
environmental matters which are covered by clause (ii)), and (ii) to the
best of its knowledge, all applicable environmental laws, rules,
regulations and orders of all governmental authorities.
(v) The Originator is aware that Warnaco Operations, the Investors,
the Agent and the Co-Agent are entering into the Transaction Documents to
which they are parties in reliance upon the Buyer's identity as a legal
entity separate from the Originator.
(w) The purchase price payable by the Buyer to the Originator
hereunder is intended by the Originator and Buyer to be consistent with the
terms that would be obtained in an arm's-length sale.
B-4
(x) On the date hereof, and on the date of each sale of Receivables by
the Originator to the Buyer (both before and after giving effect to such
sale), the Originator shall be Solvent.
(y) The balance sheets of the Originator and its consolidated
Subsidiaries as at January 3, 1998, and the related income and retained
earnings for the fiscal year then ended, copies of which have been
furnished to the Agent and the Co-Agent, fairly present the financial
condition of the Originator and its consolidated Subsidiaries as at such
date and the results of the operations of the Originator and its
Subsidiaries for the period ended on such date, all in accordance with
generally accepted accounting principles consistently applied, and since
January 3, 1998 there has been no event or circumstance which has had a
Material Adverse Effect.
(z) At the time of each purchase of Receivables and Related Rights
hereunder by the Buyer, the Originator shall be deemed to represent and
warrant that : (i) it owns all of such Purchased Assets free and clear of
any liens, claims, charges, options, or encumbrances, (ii) each and every
account receivable which is part of the Purchased Assets represents a bona
fide sale covering the kind, quantity, and quality of merchandise stated
therein and the same has been delivered, and there are no counterclaims or
offsets against the amounts shown due on the related account, and the
merchandise has not been sold on consignment nor with any return privilege
whatsoever, except defective merchandise, and (iii) the Originator has no
information or reason to suspect that any Obligor under a Purchased Asset
is other than a good financial risk.
B-5
EXHIBIT C
COVENANTS
1. Covenants of the Originator. From the date hereof until the first
day following the Purchase and Sale Termination Date:
(a) Compliance with Laws, Etc. The Originator shall comply in all
material respects with all applicable laws, rules, regulations and orders,
and preserve and maintain its corporate existence, rights, franchises,
qualifications and privileges, except to the extent that the failure so to
comply with such laws, rules and regulations or the failure so to preserve
and maintain such rights, franchises, qualifications and privileges would
not have a Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Originator: (i)
shall keep its principal place of business and chief executive office (as
such terms or similar terms are used in the UCC) and the office where it
keeps its records concerning the Receivables at the address of the
Originator set forth under its name on the signature page to the Agreement
or, upon 30 days' prior written notice to the Buyer and the Agent, at any
other locations in jurisdictions where all actions reasonably requested by
the Buyer or its assignees to protect and perfect the interest of the Buyer
in the Receivables and Related Rights have been taken and completed and
(ii) shall provide the Buyer and its assignees with at least 30 days'
written notice before making any change in the Originator's name or making
any other change in the Originator's identity or corporate structure
(including a Change in Control) that could render any UCC financing
statement filed in connection with this Agreement "seriously misleading" as
such term (or similar term) is used in the UCC; each notice to the Buyer or
its assignees pursuant to this sentence shall set forth the applicable
change and the effective date thereof. The Originator also will maintain
and implement (or cause the Servicer to maintain and implement)
administrative and operating procedures (including an ability to recreate
records evidencing Receivables and related Contracts in the event of the
destruction of the originals thereof), and keep and maintain (or cause the
Servicer to keep and maintain) all documents, books, records, computer
tapes and disks and other information reasonably necessary or advisable for
the collection of all Receivables (including records adequate to permit, as
and when necessary, the daily identification of each Receivable and all
Collections of and adjustments to each existing Receivable).
C-1
(c) Performance and Compliance with Credit and Collection Policy. The
Originator shall fully comply in all material respects with the Credit and
Collection Policy.
(d) Sales, Liens, Etc. The Originator shall not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer
to exist any Adverse Claim upon or with respect to, any or all of its
right, title or interest in, to or under any Receivable, Related Rights or
Collections, or upon or with respect to any account to which any
Collections of any Receivables are sent), or assign any right to receive
income in respect of any items contemplated by this paragraph; it being
understood that the Servicer may sell a Defaulted Receivable if the
Servicer believes in good faith that such sale will maximize the amount to
be received by the Buyer with respect to such Receivable.
(e) Change in Credit and Collection Policy. The Originator shall not
make any material change in the character of its business or the Credit and
Collection Policy that would materially adversely affect the collectibility
of the Receivables or the enforceability of any related Contract or the
ability of the Originator to perform its obligations under the Agreement.
(f) Audits. (i) The Originator shall from time to time during regular
business hours as reasonably requested in advance (unless a Purchase and
Sale Termination Event exists) by the Buyer, Warnaco Operations, the Agent
or the Co-Agent, permit the Buyer, Warnaco Operations, the Agent or the
Co-Agent, or their agents or representatives: (A) to examine and make
copies of and abstracts from all books, records and documents (including
computer tapes and disks) in the possession or under the control of the
Originator relating to Receivables and the Related Security, including the
related Contracts, and (B) to visit the offices and properties of the
Originator for the purpose of examining such materials described in clause
(i)(A) above, and to discuss matters relating to Receivables and the
Related Security or the Originator's performance under the Transaction
Documents with any of the officers, employees, agents or contractors of the
Originator, having knowledge of such matters; and (ii) without limiting the
provisions of clause (i) next above, from time to time during regular
business hours, upon five Business Days prior written notice from the
Buyer, Warnaco Operations, the Agent or the Co-Agent, permit certified
public accountants or other auditors acceptable to the Buyer, Warnaco
Operations, the Agent or the Co-Agent to conduct a review of the
Originator's books and records, at the Originator's expense, with respect
to the Receivables.
(g) Change in Collection Account Bank, Collection Account and Payment
Instructions to Obligors. The Originator shall not, and shall not permit
the
C-2
Servicer to, terminate the Collection Account Bank or the Collection
Account, or make any change in its instructions to Obligors regarding
payments to be made to the Originator, such Originator, the Servicer or the
Collection Account (or related post office box), unless the Agent shall
have consented thereto in writing (which consent shall not be unreasonably
withheld) and the Agent shall have received copies of all agreements and
documents (including a Collection Account Agreement) that it may request in
connection therewith.
(h) Deposits to Collection Account. The Originator shall (or shall
cause the Servicer to): (i) instruct all Obligors to make payments of all
Receivables to the Collection Account or to post office boxes to which only
the Collection Account Bank has access (and shall instruct the Collection
Account Bank to cause all items and amounts relating to such Receivables
received in such post office boxes to be removed and deposited into the
Collection Account on a daily basis), and (ii) deposit, or cause to be
deposited, any Collections received by it, the Servicer or any Originator
into the Collection Account not later than two (2) Business Days after
receipt thereof. The Originator will not (and will not permit the Servicer
to) deposit or otherwise credit, or cause or permit to be so deposited or
credited, to the Collection Account cash or cash proceeds other than
Collections.
(i) Reporting Requirements. The Originator shall provide to the Buyer
and the Agent the following:
(i) As soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Originator, (a) a copy of the unaudited balance sheet of the
Originator, as at the end of such quarter, together with unaudited
statements of earnings, stockholders' equity for such quarter and the
portion of the fiscal year through such quarter, prepared in
accordance with GAAP and certified by the chief financial officer,
treasurer or chief accounting officer of the Originator, and (b) a
letter from the chief financial officer, treasurer or chief accounting
officer of the Originator, certifying to the best knowledge of such
officer, that neither a Purchase and Sale Termination Event nor an
Unmatured Purchase and Sale Termination Event has occurred and is
continuing;
(ii) As soon as available and in any event within 90 days after
the end of each fiscal year of the Originator, (a) a copy of the
unaudited balance sheet of the Originator, as at the end of such
fiscal year, together with the related statements of earnings,
stockholders' equity for such fiscal year, prepared in accordance with
GAAP applied consistently throughout the periods reflected therein,
and (b) a letter from the chief financial officer,
C-3
treasurer or chief accounting officer of the Originator, certifying to
the best knowledge of such officer, that neither a Purchase and Sale
Termination Event nor an Unmatured Purchase and Sale Termination Event
has occurred and is continuing, in each case as at the end of each
such fiscal year and the date of delivery of such letter;
(iii) promptly after the filing or receiving thereof, copies of
all reports and notices that the Originator or any Affiliate files
under ERISA with the Internal Revenue Service, the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor or that the
Originator or any Affiliate receives from any of the foregoing or from
any multi-employer plan (within the meaning of Section 4001(a)(3) of
ERISA) to which the Originator or any of its Affiliates is or was,
within the preceding five years, a contributing employer, in each case
in respect of the assessment of withdrawal liability or an event or
condition that could, in the aggregate, result in the imposition of
liability on the Originator and/or any such Affiliate;
(iv) promptly after the Originator obtains knowledge thereof,
notice of any: (A) material litigation, investigation or proceeding
that may exist at any time between the Originator and any Person or
(B) material litigation or proceeding relating to any Transaction
Document;
(v) promptly after the occurrence thereof, notice of a change in
the business, operations, property or financial or other condition of
the Originator or the Servicer which would have a Material Adverse
Effect; and
(vi) such other information respecting the Receivables or the
condition or operations, financial or otherwise, of the Originator or
any of its Affiliates as the Buyer, Warnaco Operations, the Agent or
the Co-Agent may from time to time reasonably request upon reasonable
notice.
(j) Certain Agreements. Without the prior written consent of the Agent
and the Co-Agent, the Originator will not amend, modify, waive, revoke or
terminate any Transaction Document to which it is a party.
(k) Extension or Amendment of Receivables. Except as provided in
Section 4.2(a) of the Receivables Purchase Agreement and the Credit and
Collection Policy, the Originator shall not extend the maturity or adjust
the Outstanding Balance or otherwise modify the terms of any Receivable, or
amend, modify or waive any term or condition of any related Contract.
C-4
(l) Receivables Not to be Evidenced by Promissory Notes or Chattel
Paper. The Originator shall not take any action to cause or permit any
Receivable purchased by it to become evidenced by any "instrument" or
"chattel paper" (as defined in the applicable UCC) unless such "instrument"
or "chattel paper" shall be delivered to the Buyer (which in turn shall
deliver the same to the Agent on behalf of the Issuers).
(m) Mergers, Acquisitions, Sales, etc. The Originator shall not merge
or consolidate with another Person (except pursuant to a merger or
consolidation involving the Originator where the Originator is the
surviving corporation), or convey, transfer, lease or otherwise dispose of
(whether in one or in a series of transactions), all or substantially all
of its assets (whether now owned or hereafter acquired), other than
pursuant to this Agreement).
(n) Accounting for Purchases. The Originator shall not account for or
treat (whether in financial statements or otherwise) the transactions
contemplated hereby in any manner other than as sales of the Receivables
and Related Rights by the Originator to the Buyer.
(o) Transaction Documents. The Originator shall not enter into,
execute, deliver or otherwise become bound by any agreement, instrument,
document or other arrangement that restricts the right of the Originator to
amend, supplement, amend and restate or otherwise modify, or to extend or
renew, or to waive any right under, this Agreement or any other Transaction
Documents.
C-5
