Exhibit 10.22
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of December 10, 1997
(amending and restating the
Receivables Purchase Agreement dated as of August 17, 1994)
Among
B.I. FUNDING, INC.,
BURLINGTON INDUSTRIES, INC.,
And
THE OTHER SELLERS PARTIES HERETO
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS; RESTATEMENT...............................................1
SECTION 1.01. ................................................1
SECTION 1.02. Restatement of Prior Agreement........................2
SECTION 1.03. Qualification Regarding Bacova........................2
ARTICLE II
PURCHASE OF RECEIVABLES; CONSIDERATION AND PAYMENT.....................2
SECTION 2.01. Purchase of Receivables...............................2
SECTION 2.02. Purchase Price........................................3
SECTION 2.03. Payment of Purchase Price.............................4
SECTION 2.04. No Repurchase.........................................5
SECTION 2.05. Dilutive Credits......................................5
SECTION 2.06. Certain Charges.......................................6
SECTION 2.07. Termination...........................................6
SECTION 2.08. Limitation on Liability of the Sellers and Others.....6
SECTION 2.09. Inclusion of Additional Sellers.......................7
ARTICLE III
CONDITIONS PRECEDENT............................................ .......8
SECTION 3.01. Conditions Precedent to the Effectiveness of this
Agreement...................................... .......8
SECTION 3.02. Conditions Precedent to the Company's Purchases of
Receivables.................................. .........9
SECTION 3.03. Conditions Precedent to Sellers' Obligations on Effective
Date....................................... ...........10
SECTION 3.04. Conditions Precedent to Sellers' Obligations on Payment
Dates..................................................11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES..........................................11
SECTION 4.01. Representations and Warranties of the Parties...11
SECTION 4.02. Additional Representations of the Sellers.......12
ARTICLE V
COVENANTS...............................................................14
SECTION 5.01. Affirmative Covenants of the Sellers............14
SECTION 5.02. Negative Covenants of the Sellers...............21
ARTICLE VI
PURCHASE TERMINATION EVENTS.............................................22
SECTION 6.01. Purchase Termination Events.....................22
SECTION 6.02. Remedies........................................23
ARTICLE VII
INDEMNIFICATION.........................................................23
SECTION 7.01. Indemnities by the Sellers......................23
SECTION 7.02. Indemnities by the Company......................25
ARTICLE VIII
SUBORDINATED NOTE; PREFERRED STOCK......................................25
SECTION 8.01. Subordinated Note...............................25
SECTION 8.02. Preferred Stock.................................26
SECTION 8.03. Restructuring on Transfer of Subordinated Note and
Preferred Stock............................26
ARTICLE IX
MISCELLANEOUS...........................................................26
SECTION 9.01. Amendments, Etc.................................26
SECTION 9.02. Notices, Etc....................................26
SECTION 9.03. No Waiver; Remedies.............................27
SECTION 9.04. Binding Effect; Governing Law...................27
SECTION 9.05. Costs, Expenses and Taxes.......................27
SECTION 9.06. Headings........................................28
SECTION 9.07. Grant of License to Use Patents and Trademarks..28
SECTION 9.08. Acknowledgment of Transaction Documents.........28
SECTION 9.09. Waiver of Jury Trial............................28
SECTION 9.10. Severability....................................28
SECTION 9.11. Counterparts....................................28
SECTION 9.12. Jurisdiction; Consent to Service of Process.....28
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Schedules
SCHEDULE I Authorized Officers
SCHEDULE II Fiscal Months and Fiscal Quarters
SCHEDULE III Trade Names
SCHEDULE IV Accounts
SCHEDULE V Location of Records
SCHEDULE VI Notices
Exhibits
EXHIBIT A Form of Monthly Settlement Statement
EXHIBIT B Form of Weekly Report
EXHIBIT C Form of Subordinated Note
Annexes
ANNEX Z Definitions
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (the "Agreement")
dated as of December 10, 1997 (amending and restating the Receivables Purchase
Agreement dated as of August 17, 1994) among B.I. FUNDING, INC., a Delaware
corporation (the "Company"), BURLINGTON INDUSTRIES, INC., a Delaware corporation
("BII"), B.I. TRANSPORTATION, INC., a Delaware corporation ("BTI"), BURLINGTON
FABRICS INC., a Delaware corporation ("BFI"); BURLINGTON APPAREL SERVICES
COMPANY, a Delaware corporation ("BASC"); BURLINGTON INTERNATIONAL SERVICES
COMPANY, a Delaware corporation ("BISC"); THE BACOVA GUILD, LTD., a Delaware
corporation ("Bacova"); and each Additional Seller which may hereafter become
party hereto; (BII, BTI, BFI, BASC, BISC, Bacova and the Additional Sellers are
herein referred to collectively as the "Sellers").
The Company is in the business of acquiring accounts receivable of the
Sellers. The Company intends from time to time to sell an interest in the pool
of accounts receivable purchased by the Company from the Sellers pursuant to,
and in accordance with the terms of, this Agreement. In order to enable the
Company to sell such interest, the Sellers are willing to sell to the Company,
and the Company is willing to Purchase from the Sellers, the Receivables on the
terms and subject to the conditions set forth herein.
Accordingly, the Company and each of the Sellers agree as follows:
ARTICLE I
DEFINITIONS; RESTATEMENT
SECTION 1.01.
(a) Definitions. Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in Annex Z attached
hereto.
(b) Terms Generally. The definitions referred to in paragraph
(a) above shall apply equally to both the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The
words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation". All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require. Except as
otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP.
(c) UCC Terms. All terms used in Article 9 of the UCC that are
used but not defined herein or in Annex Z shall have the meanings
assigned to such terms in such Article 9.
(d) Computation of Time Periods. Unless otherwise specified in
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this Agreement, in the computation of a period of time from a specified
date to a later specified date, the word "from" means "from and
including," and the words "to" and "until" each mean "to but
excluding".
SECTION 1.02. Restatement of Prior Agreement. This Agreement amends and
restates in its entirety the Receivables Purchase Agreement dated as of March
26, 1992, as amended and restated as of August 17, 1994 (the "Prior Sale
Agreement"), among certain of the Sellers and the Company. All Receivables and
other assets conveyed to the Company under the Prior Agreement shall be deemed
to have been conveyed hereunder, and all obligations of the Sellers hereunder
shall apply to such assets to the same extent as assets conveyed after the date
hereof.
SECTION 1.03. Qualification Regarding Bacova. Notwithstanding anything
to the contrary in any of the Transaction Documents, Receivables originated by
Bacova shall not be conveyed to the Company hereunder, and shall not be
classified as Eligible Receivables or be subject to the terms of the Transaction
Documents regarding the collection of Receivables or the reporting of
information regarding the Receivables, until the Company and the Agent shall
have agreed to the inclusion of such Receivables in the transactions
contemplated by the Transaction Documents, which agreement shall be deemed to
have occurred once the reporting systems of Bacova have been integrated into the
systems of the Parent Group in a manner reasonably satisfactory to the Agent and
notified to the Servicers in writing.
ARTICLE II
PURCHASE OF RECEIVABLES;
CONSIDERATION AND PAYMENT
SECTION 2.01. Purchase of Receivables.
(a) Each of the Sellers (other than BII) hereby sells, assigns
transfers and conveys to BII, and BII hereby sells, assigns, transfers
and conveys to the Company, on the Closing Date and from time to time
thereafter, on the terms and subject to the conditions specifically set
forth herein, all its respective right, title and interest, in, to and
under (i) all Receivables now existing and hereafter arising from time
to time, as provided in paragraph (b) below, and all payment and
enforcement rights (but none of the obligations) with respect to
Receivables, (ii) all Related Security in respect of such Receivables,
(iii) all Collections and other monies due or to become due with
respect to the foregoing and (iv) all proceeds of the foregoing. It is
understood that all Receivables, Related Security, monies and proceeds
conveyed by the Sellers (other than BII) to BII pursuant to this
Section 2.01 (the "Subsidiary Assets") are simultaneously being
conveyed by BII to the Company, together with Receivables originated by
BII (and Related Security, monies and proceeds relating to such
Receivables originated by BII). BII retains no interest in the
Subsidiary Assets. The Company shall be entitled to exercise all of its
rights and remedies hereunder with respect to the Subsidiary Assets
against either BII or the Seller that originated such Subsidiary
Assets, or both, to the
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same extent as would be the case if (in the case of BII) BII had
originated such Subsidiary Assets or (in the case of such Seller) if
the Company acquired such Subsidiary Assets directly from such Seller.
(b) Upon the fulfillment of the conditions set forth in
Article III with respect to each newly created Receivable, all of the
applicable Seller's right, title and interest in and to such newly
created Receivable and all Related Security in respect of such
Receivable shall be immediately and automatically sold, assigned,
transferred and conveyed to the Company pursuant to paragraph (a) above
without any further action by such Seller or any other Person.
(c) The parties to this Agreement intend that the transactions
contemplated hereby shall be, and shall be treated as, a purchase by
the Company and a sale by the applicable Seller of the Purchased
Receivables and not as a lending transaction. All sales of Receivables
and Related Security by any Seller hereunder shall be without recourse
to, or representation or warranty of any kind (express or implied) by,
any Seller, except as otherwise specifically provided herein. The
foregoing sale, assignment, transfer and conveyance does not constitute
and is not intended to result in a creation or assumption by the
Company of any obligation of any Seller or any other Person in
connection with the Receivables or any agreement relating thereto,
including any obligation to any Obligor.
(d) In connection with the foregoing conveyances, each Seller
agrees to record and file, at its own expense, financing statements
(and continuation statements with respect to such financing statements
when applicable) with respect to the Receivables and Related Security
now existing and hereafter acquired by the Company from the Sellers
meeting the requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect the purchases of the
Receivables and Related Security by the Company from the Sellers, and
to deliver such financing statements to the Company on or prior to the
Effective Date.
(e) In connection with the foregoing conveyances, each Seller
agrees at its own expense, as agent of the Company, (i) to indicate on
the computer files and other physical records relating to the
Receivables (by means of a general legend that will automatically
appear at or near the beginning of any list or print-out of the
Receivables) that, unless otherwise specifically identified on such
list or print-out as a Receivable not so sold or transferred, all
Receivables included in such list or print-out and Related Security
have been sold to the Company in accordance with this Agreement and
(ii) to deliver to the Company computer files or microfiche lists
containing true and complete lists of all such Receivables, identified
by Obligor and by the Receivables balance as of a date acceptable to
the Company prior to the Effective Date. Such files or lists shall be
delivered to the Company as confidential and proprietary.
SECTION 2.02. Purchase Price. The amount payable by the Company to BII
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the "Purchase Price") for newly created Receivables and Related Security on any
Payment Date to the Company under this Agreement shall be equal to the product
of (a) the aggregate Outstanding Balances of such Receivables and (b) the
Discounted Percentage. Such Purchase Price shall be paid pursuant to Section
2.03. The amount payable by BII to another Seller for newly created Receivables
and Related Security on any Payment Date shall be equal to the aggregate
Outstanding Balances of such Receivables. Such amount shall be paid by BII in
cash to such Seller on such Payment Date, and the Company shall have no
liability with respect to the payment of such amount. BII's failure to pay such
amount to such Seller shall not affect in any way the Company's rights in and to
such Receivables and Related Security.
SECTION 2.03. Payment of Purchase Price.
(a) The Purchase Price for Receivables and the Related
Security shall be paid or provided for by the Company to BII on the
Effective Date and thereafter on each Business Day (each such day, a
"Payment Date") as follows:
(i) to the extent available for such purpose, in
cash from Collections, provided that all cash payments on a
day other than a Weekly Settlement Date shall be interim
payments subject to adjustment as provided in clause(b) below;
(ii) to the extent available for such purpose, in
cash from the proceeds of Advances obtained by the Company
under the Loan Agreement;
(iii) at the option of the Company, by means of
any one or more of the following: (A) amounts contributed by
BII to the Company, and (B) an addition to the principal
amount of the Subordinated Note and the issuance of shares of
Preferred Stock so that the sum of the addition to such
principal amount and the liquidation preferences of such
shares shall equal the remaining portion of the Purchase
Price; provided, however, that the addition of the principal
amount of Subordinated Note on such Payment Date shall not, in
any event, exceed the maximum principal amount of Subordinated
Note that may be outstanding on such Payment Date as
determined from information contained in the most recent
Weekly Report in accordance with Section 8.01.
(b) In each Weekly Report, the Servicer shall determine:
(i) the aggregate amount paid by the Company to
BII pursuant to Section 2.03(a)(i) during
the Related Period (as defined below) plus
the aggregate amount of Indemnified Amounts
(as defined in Section 7.01) for the Related
Period;
(ii) the portion of Collections for the Related
Period required to be applied to the payment
of principal of, or interest on, Advances,
fees payable under the Loan Agreement and
other amounts
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required to be paid or set aside under the
Loan Agreement; and
(iii) the excess of the amount determined pursuant
to clause (i) above over the amount
determined pursuant to clause (ii) above.
"Related Period" means a period from one Weekly Cut-Off Date (or, in
the case of the first Related Period, the date hereof) to the next Weekly
Cut-Off Date, and the Related Period with respect to any Weekly Report means the
Related Period ending on the Weekly Cut-Off Date immediately prior to the date
of such Weekly Report.
If the amount determined pursuant to clause (iii) above is a positive
number, BII agrees to pay to the Company an amount equal to the amount set forth
in clause (ii) above, on the related Weekly Settlement Date in immediately
available funds. If the amount determined pursuant to clause (iii) above is a
negative number, BII agrees to pay to the Company an amount equal to the amount
set forth in clause (i) above, on the related Weekly Settlement Date in
immediately available funds. Concurrently with such payment, in accordance with
(and subject to the limitations of) Section 2.03(a)(iii)), the Subordinated Note
will be increased by such amount and/or shares of Preferred Shares will be
issued to BII.
(c) All payments under this Agreement shall be made not later
than 2:30 p.m., Atlanta time, on the date specified therefor in lawful
money of the United States of America in same day funds and (i) if to
any Seller, to the respective bank account designated in writing by
such Seller to the Company and (ii) if to the Company, to the bank
account designated in writing by the Company to the Sellers. Amounts
not paid when due shall bear interest at a rate equal at all times to
the Alternate Base Rate plus 2%, payable on demand.
(d) Whenever any payment to be made under this Agreement shall
be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day.
SECTION 2.04. No Repurchase. Notwithstanding anything herein to the
contrary, no Seller shall have any right or obligation under this Agreement, by
implication or otherwise, to repurchase from the Company any Purchased
Receivables or to rescind or otherwise retroactively affect any purchase of any
Purchased Receivables after the Purchase Date relating thereto.
SECTION 2.05. Dilutive Credits. The Sellers may accept returns of goods
for full or partial credit or make a daily adjustment in the principal amount
payable with respect to a customer who has purchased merchandise or services on
credit in accordance with the Policies. Such adjustment shall be made by the
applicable Seller on each Date of Processing. Such adjustment shall be in an
amount equal to the aggregate amount of all Dilutive Credits on such Date of
Processing. Dilutive Credits shall be subtracted from the Outstanding Balance of
Eligible Receivables appearing on the next Weekly Report.
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SECTION 2.06. Certain Charges. Each of the Sellers and the Company
agrees that late charge revenue, other fees and charges and other similar items,
whenever created, accrued in respect of Purchased Receivables shall be the
property of the Company notwithstanding the occurrence of a Purchase Termination
Event and all Collections with respect thereto shall continue to be allocated
and treated as Collections in respect of Purchased Receivables.
SECTION 2.07. Termination. Each Seller's respective obligation to sell
the Receivables under this Agreement shall terminate on the date (the "Purchase
Termination Date") that is the earlier of (a) the termination of the Liquidity
Commitments pursuant to the Loan Agreement and (b) the date on which the
Company's obligation to purchase Receivables shall terminate pursuant to Section
6.01.
SECTION 2.08. Limitation on Liability of the Sellers and Others. No
recourse under or upon any obligation or covenant of this Agreement, or the
Receivables, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, shareholder, employee, agent, officer or
director, in its capacity as such, past, present or future, of any Seller or of
any successor corporation, either directly or through such Seller, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Agreement and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by the incorporators, shareholders, employees, agents, officers or
directors, as such, of any Seller or of any successor corporation, or any of
them, under or by reason of the obligations, covenants or agreements contained
in this Agreement or in the Receivables or implied therefrom; and that any and
all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareholder, employee, agent, officer or director, as
such, under or by reason of the obligations or covenants contained in this
Agreement or in the Receivables or implied therefrom, are hereby expressly
waived and released as a condition of, and as consideration for, the execution
of this Agreement provided, however, that this provision shall not protect any
such Person against any liability which would otherwise be imposed by reason of
wilful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder. Each
Seller and any director or officer or employee or agent of such Seller may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. No Seller
shall be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties to service the Receivables in accordance
with this Agreement if such appearance, prosecution or defense may, in such
party's reasonable opinion, cause it to incur any expense or liability. In
furtherance of the foregoing, to the extent permitted by applicable law, the
Company and the Sellers agree that (a) no Seller shall be entitled to (or to an
accounting for) any surplus or be liable for any deficiency resulting from
actual Collections of Receivables and (b) each Seller irrevocably waives any
right or equity of redemption in respect of the Receivables.
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SECTION 2.09. Inclusion of Additional Sellers. At any time and from
time to time, upon the prior delivery to the Company and the Agent of a
certificate (together with an executed copy of the agreement attached thereto in
accordance with clause (ii) below, and "Additional Seller Certificate") to that
effect, BII may designate one or more of its then wholly owned Subsidiaries as
(and, upon approval by the Agent of the addition and the materials required to
be delivered under this Section 2.09 and the Agent's receipt of confirmation
that the addition will not cause the rating on any Commercial Paper Notes to be
reduced or withdrawn, such Subsidiaries shall automatically, without any further
notice or other action, become) Sellers under this Agreement (each such Seller
being an "Additional Seller"); whereupon this Agreement shall automatically,
without any further notice or other action, be amended, supplemented or
otherwise modified, to the extent necessary, to reflect the information
contained in such Additional Seller Certificate. Each Additional Seller
Certificate (i) shall contain the following information:
(A) the name and the state of incorporation
of the proposed Additional Seller;
(B) a statement that such proposed
Additional Seller is a wholly owned Subsidiary of
BII;
(C) a description of the business of such
proposed Additional Seller (which shall be similar
or related to one or more of the businesses
conducted by any of the Sellers (other than the
Additional Sellers) on the Effective Date,
including, without limitation those businesses
that, in the ordinary course, (a) purchase or use
goods manufactured or processed and services
rendered by, or (b) manufacture goods or render
services purchased or used by, any business in
which any such other Seller is so engaged on the
Effective Date) and a description of the types of
Obligors whose Receivables will be sold to the
Company by such proposed Additional Sellers (which
shall be substantially similar to the types of
Obligors whose Receivables are being purchased by
the Company from the Sellers at that time);
(D) the date (an "Additional Seller Date")
on which such proposed Additional Seller is to
become an Additional Seller; and
(E) certification as to the matters
contained in the certificates of the Chief
Financial Officer of BII delivered pursuant to
Section 6.1.18 of the Loan Agreement;
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(ii) shall attach an agreement between such proposed Additional Seller, BII and
the Company, for their benefit and the benefit of the other Sellers, pursuant to
which such proposed Additional Seller:
(A) shall have certified that it has satisfied all conditions
as to itself, its activities and its property contained in Section 3.01
(substituting, for purposes of this clause (A), the related Additional
Seller Date for the Effective Date referred to therein);
(B) shall furnish all information as to itself, its activities
and its property required by this Agreement (including the information
required under each applicable Schedule);
(C) shall agree to be bound by the terms, conditions and
provisions of this Agreement and the Subordination Agreement, Consent
and Acknowledgment purporting to bind the Sellers;
(D) shall make on and as of such Additional Seller Date all
representations and warranties, as to itself, its activities and its
property, contained in Sections 4.01 and 4.02; and
(iii) shall attach an opinion satisfactory in form and substance to the Agent as
to the matters set forth in the opinion required to be delivered pursuant to
Section 6.1.17 of the Loan Agreement. The consent of the Agent to the addition
of a Seller shall not be withheld if (i) such proposed Additional Seller's
Receivables balance as of a date not earlier than 10 days prior to the delivery
of the Additional Seller Certificate does not exceed 2.0% of the Outstanding
Balance of all Receivables as of such date (an "Immaterial Seller"); (ii) BII is
the Servicer at such time; and (iii) the types of Obligors which are obligated
with respect to such proposed Additional Seller's Receivables are substantially
similar to types of Obligors which are obligated with respect to the Receivables
then being purchased by the Company from the Sellers; provided further that in
the event that any such Immaterial Seller's Receivables balance shall during the
12 months immediately following such Additional Seller Date, exceed 5% of the
Outstanding Balance of all Receivables, such excess amount shall not be
classified as Eligible Receivables until the expiration of such 12 month period.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to the Effectiveness of this
Agreement. The effectiveness of this Agreement is subject to the conditions
precedent that (a) each of the other Purchase Documents shall be in full force
and effect and (b) the conditions set forth below shall have been satisfied on
or before the Effective Date:
(i) the Company shall have received copies of duly
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adopted resolutions of the Board of Directors of each Seller
as in effect on the Effective Date and in form and substance
satisfactory to the Company, authorizing this Agreement, the
documents to be delivered by such Seller hereunder and the
transactions contemplated hereby, certified by the Secretary
or Assistant Secretary of such Seller;
(ii) the Company shall have received duly executed
certificates of the Secretary or an Assistant Secretary of
each Seller, dated the day of the Effective Date and in form
and substance satisfactory to the Company, certifying the
names and true signatures of the officers authorized on behalf
of such Seller to sign this Agreement or any instruments or
documents in connection with this Agreement;
(iii) the Concentration Account and the Lockbox
Accounts shall have been established in the name of the
Company, and lockbox arrangements made in connection with the
1994 Liquidity Agreement shall have been terminated as to the
collateral agent under such agreement;
(iv) the Company shall have received (i) duly
executed UCC-1 financing statements from each of the Sellers
with respect to the Receivables and the Related Security for
filing in such manner and in such jurisdictions as are
necessary or desirable to perfect the Company's ownership
interest thereof under the UCC; (ii) duly executed UCC
statements assigning to the Agent any UCC-1 financing
statements filed in connection with the Prior Sale Agreement
against BII in favor of the Company; and (iii) all other
action necessary or desirable, in the opinion of the Company,
to perfect the Company's ownership of the Purchased
Receivables shall have been duly taken;
(v) each Seller shall have delivered to the
Company a microfiche or other tangible evidence acceptable to
the Company showing as of a date acceptable to the Company
prior to the Effective Date the Obligors whose Receivables are
to be transferred to the Company and the balance of the
Receivables with respect to each such Obligor as of such date;
(vi) the Company shall have received reports of
UCC and other searches of each Seller with respect to the
Receivables and the Related Security reflecting the absence of
Liens thereon, except Liens created in connection with the
sale by the Company of an interest in the Purchased
Receivables and except for Liens as to which the Company has
received UCC termination statements; and
(vii) the Company shall have modified the existing
lockbox arrangements with the Lockbox Banks to reflect the
transactions contemplated by the new Transaction Documents.
SECTION 3.02. Conditions Precedent to the Company's Purchases of
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Receivables. The obligation of the Company to accept and pay for each Receivable
and the Related Security on each Payment Date (including the Effective Date)
from the Sellers shall be subject to the further conditions precedent that on
such Payment Date:
(a) the following statements shall be true (and the acceptance
by each Seller of their respective Purchase Prices for any Receivables
on any Payment Date shall constitute a representation and warranty by
such Seller that on such Payment Date such statements are true):
(i) the representations and warranties of each
Seller contained in Sections 4.01 and 4.02 shall be true and
correct in all material respects on and as of such Payment
Date as though made on and as of such date; and
(ii) no Purchase Termination Event or Incipient
Purchase Termination Event with respect to any Seller shall
have occurred and be continuing;
(b) the Company shall be satisfied that each Seller's systems,
procedures and record keeping relating to the Purchased Receivables are
in all respects sufficient and satisfactory in order to permit the
purchase and administration of the Purchased Receivables in accordance
with the terms and intent of this Agreement;
(c) the Company shall have received payment in full of all
amounts for which payment has been requested by the Company pursuant to
Article VII or Section 9.05;
(d) the Company shall have received such other approvals,
opinions or documents as the Company may reasonably request;
(e) each Seller shall have complied with all its covenants and
satisfied all its obligations under this Agreement required to be
complied with or satisfied as of such date; and
(f) the Company shall be satisfied that, after giving effect
to the transactions contemplated to occur on such Purchase Date, no
Purchase Termination Event or Incipient Purchase Termination Event with
respect to the Company shall have occurred and be continuing.
SECTION 3.03. Conditions Precedent to Sellers' Obligations on Effective
Date. The obligations of each Seller on the Effective Date shall be subject to
the conditions precedent that such Seller shall have received on or before the
Effective Date the following, each dated the day of the Effective Date and in
form and substance satisfactory to such Seller:
(a) a copy of duly adopted resolutions of the Board of
Directors of the Company authorizing this Agreement, the documents to
be delivered by the Company
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hereunder and the transactions contemplated hereby, certified by the
Secretary or Assistant Secretary of the Company; and
(b) a duly executed certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true signatures of
the officers authorized on its behalf to sign this Agreement and the
other documents to be delivered by it hereunder.
SECTION 3.04. Conditions Precedent to Sellers' Obligations on Payment
Dates. The obligations of each Seller on any Payment Date (including the
Effective Date) shall be subject to the further conditions precedent that the
representations and warranties of the Company contained in Section 4.01 are true
and correct on and as of such Payment Date as though made on and as of such date
(and the payment by the Company of the Purchase Price shall constitute a
representation and warranty by the Company that on such date such statements are
true).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Parties. The
Company represents and warrants as to itself, and each Seller represents and
warrants as to itself, as follows:
(a) Organization and Good Standing. It (i) is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in
which the failure to so qualify would have a material adverse effect on
the conduct of its business, (ii) has the requisite corporate power and
authority to effect the transactions contemplated hereby and (iii) has
all requisite corporate power and authority and the legal right to own,
sell, pledge, mortgage and operate its properties, and to conduct its
business as now or currently proposed to be conducted.
(b) Due Authorization and No Conflict. The execution, delivery
and performance by it of this Agreement, and all instruments and
documents to be delivered hereunder by it, and the transactions
contemplated hereby and thereby, (i) are within its corporate powers,
have been duly authorized by all necessary corporate action, including
the consent of shareholders where required, and do not (A) contravene
its charter or by-laws, (B) violate any law or regulation or any order
or decree of any court or governmental instrumentality, (C) conflict
with or result in the breach of, or constitute a default under, any
material indenture, mortgage or deed of trust binding on or affecting
it or any of its respective subsidiaries or any of its properties or
(D) result in or require the creation or imposition of any Lien,
including pursuant to any agreement or instrument referred to in clause
(C) above, except as created or imposed hereunder or under the Security
Agreement, and no transaction contemplated hereby requires compliance
on its part with any bulk sales act or similar law and (ii) do not
require the consent, authorization by or approval of or notice to or
filing or registration with, any
11
governmental body, agency, authority, regulatory body or any other
Person other than those referred to in Article III hereof, which have
been obtained. This Agreement has been duly executed and delivered by
the Company and each Seller and constitutes its legal, valid and
binding obligations enforceable against it in accordance with its
terms. The Subordinated Note has been duly executed and delivered by
the Company and constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms. The Preferred
Stock has been duly authorized and against payment therefor as provided
herein will be validly issued, fully paid and nonassessable.
(c) No Proceedings. There is no action, suit or proceeding
pending or, to its knowledge threatened against or affecting it or any
of its subsidiaries before any court, governmental agency or arbitrator
that is reasonably likely to be determined adversely to such
corporation and that, if so determined, would materially and adversely
affect its condition (financial or otherwise), business, operations,
properties or assets or that purports to affect the legality, validity
or enforceability of this Agreement, and none of the transactions
contemplated hereby is or is threatened to be restrained or enjoined
(temporarily, preliminarily or permanently).
(d) Accounting Treatment. It will not prepare any financial
statements that shall account for the transactions contemplated hereby,
nor will it in any other respect account for the transactions
contemplated hereby, in a manner that is inconsistent with the
Company's ownership interest in the Receivables.
SECTION 4.02. Additional Representations of the Sellers. Each Seller
additionally represents and warrants as follows:
(a) Eligible Receivables. Each Receivable sold by any Seller
hereunder and designated on a Weekly Report to be an Eligible
Receivable will be, at its respective Purchase Date, an Eligible
Receivable.
(b) Sale of Receivables. Such Seller is the sole legal and
beneficial owner of its Receivables, and upon the sale of each
Purchased Receivable of such Seller, the Company will become the sole
legal and beneficial owner of the Purchased Receivables, free and clear
of any Liens (except for Liens granted by such Seller in favor of the
Company and the security interest in such Purchased Receivables granted
by the Company to other Persons), and no effective financing statement
or other instrument similar in effect covering all or any part of such
Purchased Receivable, Related Security or Collections with respect
thereto will at such time be on file in any filing or recording office
except such as have been filed in favor of the Company in accordance
with this Agreement.
(c) No Material Misstatements. No information, report,
financial statement, exhibit or schedule furnished by or on behalf of
any Seller to the Company in connection with the negotiation of any
Purchase Document or included therein or
12
delivered pursuant thereto contained, contains or will contain any
material misstatement of fact or omitted, omits or will omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were, are or will be made,
not misleading. Any reaffirmation of the foregoing sentence is subject
to any change in the facts and conditions on which such information,
report, financial statement, exhibit or schedule is based, which
changes are required or permitted under this Agreement; provided,
however, that in all cases no information, report, financial statement,
exhibit or schedule furnished by or on behalf of any Seller to the
Company in connection with the negotiation of any Purchase Document or
included therein or delivered pursuant thereto contained at the time
made any untrue statement of a material fact or omitted at the time
made to state a material fact (known to any such Person in the case of
any document not furnished by it) necessary in order to make the
statement contained herein or therein not misleading.
(d) Location of Office and Records. The chief place of
business and chief executive office of each Seller and the only offices
where each Seller keeps all its books, records and documents evidencing
Purchased Receivables are located at the locations listed on Schedule V
hereto.
(e) Trade Names. Set forth opposite the name of each Seller in
Schedule III is a complete and accurate list of the trade names used by
such Seller during the six-year period preceding the date of this
Agreement.
(f) Financial Statements. Each Seller has heretofore furnished
to the Company copies of all periodic and other reports, proxy
statements and other materials filed by BII or by any member of the
Parent Group or by it with the Securities and Exchange Commission or
with any national securities exchange since September 28, 1996. All
financial statements contained therein present fairly the financial
information contained therein as of the dates thereof and were prepared
in accordance with GAAP. None of the practices set forth in the
Policies conflict with GAAP.
(g) No Consent. No action, consent or approval of,
registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the transactions
contemplated by this Agreement, except such as have been made or
obtained and are in full force and effect.
(h) Company Can Perform. The Company has been furnished with
all materials and data necessary to permit immediate collection of the
Purchased Receivables without the participation of any Seller in such
collection.
(i) No Adverse Change. Since June 28, 1997, there has been no
change in the business, operations, properties, assets or condition
(financial or otherwise) of BII and its Subsidiaries which has been,
either in any case or in the aggregate, materially adverse to BII and
its Subsidiaries taken as a whole, other than changes contemplated by
13
or disclosed in any of the Purchase Documents or in any Schedules
attached thereto.
(j) No Previous Debt. Immediately prior to consummation of the
transactions contemplated hereby on the Effective Date, the Company had
no outstanding indebtedness to the Sellers, other than the Subordinated
Note.
(k) Accounts. Set forth in Schedule IV is a complete and
accurate description of the Concentration Account, each Lockbox
Account, and each bank account maintained by any of the Sellers, the
Servicer or the Company for the purpose of receiving collections with
respect to Purchased Receivables. There are no other bank accounts
maintained by any of such corporations for any such or similar
purposes. Each of the Concentration Bank Letter and the Lockbox Bank
Letters continues to be the legal, valid and binding obligation of the
parties thereto, enforceable against such parties in accordance with
its terms, and each Seller acknowledges that all cash and other
proceeds of the Collateral will continue to be deposited in a
Collection Account and are subject to the terms and conditions of this
Agreement.
(l) Solvency. Both prior to and after giving effect to the
transactions occurring on the Effective Date and after giving effect to
each subsequent transaction contemplated hereunder, (i) the fair value
of the assets of such Seller at a fair valuation will exceed the debts
and liabilities, subordinated, contingent or otherwise, of such Seller;
(ii) the present fair salable value of the property of such Seller will
be greater than the amount that will be required to pay the probable
liability of such Seller on its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) such Seller will be able
to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured;
and (iv) such Seller will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business
is now conducted and is proposed to be conducted. No Seller intends to,
nor believes that it will, incur debts beyond its ability to pay such
debts as they mature, taking into account the timing of and amounts of
cash to be received by it and the timing of the amounts of cash to be
payable on or in respect of its indebtedness.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants of the Sellers. So long as the
Company shall have any interest in any Purchased Receivable or until the
Purchase Termination Date, whichever is later, each Seller shall, unless the
Company otherwise consents in writing:
(a) Statements, Reports, etc. Deliver to the Company:
(i) promptly after the same become publicly
14
available, copies of all periodic and other reports, proxy
statements and other materials filed by it with the Securities
and Exchange Commission, or any governmental authority
succeeding to any of or all the functions of said Commission,
or with any national securities exchange, or distributed to
its shareholders, as the case may be;
(ii) concurrently with any delivery of reports
under (i) above, and on each Monthly Settlement Date a
certificate of a Financial Officer, certifying such statements
and certifying that no Purchase Termination Event or Incipient
Purchase Termination Event has occurred, or, if such an event
has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect
thereto; and
(iii) promptly, from time to time, such other
information regarding the operations, business affairs and
financial condition of such Seller, or compliance with the
terms of any Purchase Document, as the Company may reasonably
request.
Each financial statement of the Company will state that the Company is
a separate corporate entity with its own separate creditors and that such
creditors will be entitled to be satisfied out of the Company's assets prior to
any value in the Company becoming available to the Company's equity holders or
the creditors of such equity holders.
(b) Compliance with Laws, etc. Comply in all material respects
with all applicable laws, rules, regulations, directions of any
Governmental Authority and orders applicable to the Purchased
Receivables where failure to so comply could reasonably be expected to
have an adverse impact on the amount of Collections thereunder;
provided, however, that each of the Sellers may contest any act,
regulation, order, decree or direction in any reasonable manner which
shall not adversely affect the rights of the Company in the Purchased
Receivables. Each Seller will comply, in all material respects, with
its obligations under contracts with Obligors relating to the Purchased
Receivables.
(c) Preservation of Corporate Existence. Do or cause to be
done all things necessary to preserve, renew and keep in full force and
effect its legal existence and maintain such legal existence separate
from that of the Company.
(d) Visitation Rights. At any reasonable time during normal
business hours and from time to time permit (i) the Company, or any of
its agents or representatives, (A) to examine and make copies of and
abstracts from the records, books of account and documents (including
computer tapes and disks) of each Seller relating to the Purchased
Receivables hereunder and (B) following the termination of the
appointment of BII as Servicer with respect to the Purchased
Receivables, to be present at the offices and properties of each Seller
to administer and control the Collection of the Purchased Receivables
and (ii) the Company, or any of its agents or representatives, to
15
visit the properties of each Seller for the purpose of examining such
records, books of account and documents, and to discuss the affairs,
finances and accounts of each Seller relating to the Purchased
Receivables or such Seller's performance hereunder with any of its
officers or directors and with its independent certified public
accountants.
(e) Keeping of Records and Books of Account. Maintain and
implement, or cause to be maintained or implemented, administrative and
operating procedures reasonably necessary or advisable for the
collection of amounts owing on all Purchased Receivables, and, until
delivery to the Company, keep and maintain, or cause to be kept and
maintained, all documents, books, records and other information
reasonably necessary or advisable for the collection of amounts owing
on all such Purchased Receivables.
(f) Location of Records. Keep its chief place of business and
chief executive office, and the offices where it keeps the records
concerning the Purchased Receivables (and all original documents
relating thereto) at the locations referred to for it on Schedule V
hereto or upon 30 days' prior written notice to the Company, at such
other locations in a jurisdiction where all action required by Section
5.01(r) shall have been taken and completed and be in full force and
effect.
(g) Computer Files. At its own cost and expense, (i) retain
the electronic ledger used by such Seller as a master record of the
Obligors and copies of all documents relating to each Obligor as
custodian for the Company and other Persons with interests in the
Purchased Receivables and (ii) mark the computer tape or other physical
records of the Purchased Receivables to the effect that interests in
the Purchased Receivables from time to time existing with respect to
the Obligors listed thereon have been conveyed to the Company and that
the Company has sold an interest therein and has granted a security
interest in the Company's retained interest therein.
(h) Policies. Perform its obligations in accordance with and
comply in all material respects with the Policies and will not change
or modify the Policies, except insofar as any change or failure so to
comply or conform would not adversely affect the Collections or the
amount and collections of Receivables or the timing and receipt thereof
or the rights or interests of the Company or if such changes are
necessary under any Requirement of Law. Except as limited by the
preceding sentence, the Sellers shall be free to change the terms and
provisions of the Policies in a commercially reasonable manner
consistent with prudent commercial practices. In furtherance of the
foregoing, each Seller shall give the Company 10 days' advance notice
of any change in the Policies, except that if such change is necessary
under any Requirement of Law prior to the expiration of such 10-day
period, such Seller shall give advance notice of any such change as
soon as practicable.
(i) Weekly Reports and Monthly Settlement Statements. Furnish
to the Company (or provide to the Company such information as shall be
required by it to
16
prepare) Weekly Reports on each Weekly Settlement Date and Monthly
Settlement Statements on each Monthly Settlement Statement Date, as
well as financial statements, cash flow reports and other records that
show the performance of the Purchased Receivables and such other
reports as may be reasonably requested by the Company.
(j) Obligations and Taxes. Pay its Indebtedness and other
material obligations promptly before the same shall become delinquent
or in default and in accordance with their terms and pay and discharge
promptly when due all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in
respect of its property before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies
or otherwise that, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such tax,
assessment, charge, levy or claim so long as the validity or amount
thereof shall be contested in good faith by appropriate proceedings and
such Seller shall have set aside on its books adequate reserves with
respect thereto.
(k) Collections. Instruct all Obligors in respect of Purchased
Receivables to make any payments with respect to any Receivables only
to a Lockbox Account or by wire transfer to the Concentration Account
and comply in all material respects with procedures with respect to
Collections specified from time to time by the Company.
(l) Furnishing Copies, etc. Furnish to the Company:
(i) within two Business Days of the Company's
request, a certificate of the chief financial officer of each
Seller certifying, as of the date thereof, that no Purchase
Termination Event referred to in Section 6.10(a) has occurred
and is continuing and setting forth the computations used by
the chief financial officer of the applicable Seller, in
making such determination;
(ii) promptly upon obtaining knowledge of the
occurrence of any Purchase Termination Event or Incipient
Purchase Termination Event, written notice thereof setting
forth details of such Purchase Termination Event or Incipient
Purchase Termination Event and a statement of the chief
financial officer of the applicable Seller, setting forth the
action that such Seller proposes to
take or has taken with respect thereto;
(iii) promptly following request therefor, such
other information, documents, records or reports with respect
to the Purchased Receivables or the conditions or operations,
financial or otherwise, of the applicable Seller, as the
Company may from time to time reasonably request;
(iv) immediately after the occurrence thereof,
written notice of any event of default or default under any
other Purchase Document;
17
(v) promptly upon the chief legal officer
obtaining knowledge of (a) the institution of or nonfrivolous
threat of any action, suit, proceeding, governmental
investigation or arbitration against or affecting such Seller
or (b) any material development in any such action, suit,
proceeding, governmental investigation or arbitration, which,
in either case, if adversely determined against such Seller,
might materially adversely affect (a) the business,
operations, property, assets or condition (financial or
otherwise) of such Seller, (b) the validity or enforceability
of, or the ability of such Seller to perform its obligations
under, the Purchase Documents or (c) the validity,
enforceability or priority of Liens created by the grant of a
security interest in the Purchased Receivables by the Company
to other Persons, written notice thereof;
(vi) written notice of any other development that
has resulted in, or could reasonably be anticipated to result
in, a material adverse effect on (a) the business, operations,
property, assets or financial condition of such Seller, (b)
the validity or enforceability of, or the ability of such
Seller to perform its obligations under, the Purchase
Documents or (c) the validity, enforceability or priority of
Liens created by the grant of a security interest in the
Purchased Receivables to other Persons; and
(vii) promptly upon determining that any Purchased
Receivable designated as an Eligible Receivable on the
applicable Weekly Report was an Ineligible Receivable as of
the date provided therefor, written notice of such
determination.
(m) Obligations with Respect to Obligors and Receivables. Take
all actions on its part reasonably necessary to maintain in full force
and effect its rights under all contracts relating to the Purchased
Receivables.
(n) Chattel Paper. (i) Maintain original copies of all chattel
paper evidencing Receivables, including any purchase agreement, at any
of the locations specified for such purpose on Schedule V; (ii) upon
the request of the Company, move and thereafter maintain all such
original copies to a single location; (iii) upon the request of the
Company, deliver all such original copies to the Company; and (iv) take
any action, at its expense, reasonably requested by the Company
necessary or desirable to protect or more fully evidence any security
interest granted by the Company in any chattel paper.
(o) Receivables Processing Facility; Storage Facility. BII
shall maintain the facilities from which it services the Purchased
Receivables in such facilities, present condition, ordinary wear and
tear excepted, or shall maintain another facility of similar quality,
security and safety as BII may select from time to time. BII shall make
all property tax payments, lease payments and other payments with
respect to such facility,
18
including payments in respect of any indebtedness secured by such
facility, whether BII shall be the Servicer or a Successor Servicer
shall have been appointed. BII shall (i) ensure that any Successor
Servicer shall have complete and unrestricted access, at BII's expense,
to such facility and all computers and other systems relating to the
servicing of the Purchased Receivables, (ii) use its best efforts to
retain the employees based at such facility to provide assistance to
any Successor Servicer after the appointment of such Successor Servicer
and (iii) continue to store on a daily basis all backup files relating
to the Purchased Receivables and the servicing of the Purchased
Receivables at Burlington Terminal, Burlington, North Carolina, or
another storage facility of similar quality, security and safety as BII
may select from time to time, in the case of each of clauses (i), (ii)
and (iii) until the earlier of (A) the payment in full in cash of the
Advances and other amounts payable to the Lenders, (B) the receipt by
the Company of all Collections in respect of all Purchased Receivables,
and (c) the Successor Servicer advising BII that it is able to perform
its obligations under this Agreement without the assistance of BII.
(p) Trade Names. Promptly notify the Company and the
Collateral Agent of any new trade names of any Seller.
(q) Responsibilities of the Sellers. Notwithstanding anything
herein to the contrary, (i) each Seller shall perform all its
obligations under the Policies related to the Purchased Receivables to
the same extent as if such Purchased Receivables had not been
transferred to the Company hereunder, (ii) the exercise by the Company
of any of its rights hereunder shall not relieve any Seller of its
obligations with respect to such Purchased Receivables (other than the
obligations of BII as Servicer if the Company has terminated the
appointment of BII as the Servicer) and (iii) except as provided by
law, the Company shall not have any obligation or liability with
respect to any Purchased Receivables, nor shall the Company be
obligated to perform any of the obligations or duties of any Seller
thereunder.
(r) Further Action. In addition to the foregoing:
(i) Each Seller 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
may be necessary or desirable in such Seller's reasonable
judgment or that the Company may reasonably request, in order
to protect or more fully evidence the Company's right, title
and interest in the Purchased Receivables, or to enable the
Company to exercise or enforce any of its rights in respect
thereof. Without limiting the generality of the foregoing,
each Seller will upon the request of the Company (A) execute
and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as
may be necessary or, in the opinion of the Company, advisable,
(B) indicate on its books and records that the Purchased
Receivables have been purchased by the Company, and provide to
the Company, upon request, copies of any such records, and (C)
obtain the agreement of any Person having a Lien on
19
any Receivables owned by any Seller (other than any Lien
created or imposed hereunder or under the Security Agreement)
to release such Lien upon the purchase of any such Receivables
by the Company.
(ii) Each Seller hereby irrevocably authorizes the
Company to file one or more financing or continuation
statements, and amendments thereto, relative to all or any
part of the Purchased Receivables sold or to be sold by such
Seller without the signature of such Seller.
(iii) If any Seller fails to perform any of its
agreements or obligations under this Agreement, the Company
may (but shall not be required to) perform, or cause
performance of, such agreements or obligations, and the
expenses of the Company incurred in connection therewith shall
be payable by such Seller as provided in Section 9.05.
(iv) Each Seller agrees that, whether or not a
Purchase Termination Event has occurred:
(A) the Company (and its assignees) shall
have the right at any time to (x) notify the
respective Obligors of the Company's ownership of
the Purchased Receivables and may direct that
payment of all amounts due or to become due under
the Purchased Receivables be made directly to the
Company or its designee or (y) give notice, or
require that any Seller, at such Seller's expense,
as the case may be, give notice, of such ownership
to each such Obligor and direct that all payments
be made directly to the Company or its designee;
(B) the Company (and its assignees) shall
have the right to (x) sue for collection on any
Purchased Receivables or (y) sell any Purchased
Receivables to any Person for a price that is
acceptable to the Company. If required by the
terms of Sections 9-504 or 9-505 of the UCC, the
Company (and its assignees) may offer to sell any
Purchased Receivable to any Person, together, at
its option, with all other Receivables created by
the Obligor under such Purchased Receivable. Any
such Purchased Receivable shall cease to be a
Receivable for all purposes under this Agreement
as of the effective date of such sale;
(C) each Seller shall, upon the Company's
request and at such Seller's expense, or upon
termination of the Company's obligations pursuant
to Section 6.01, (x) assemble all such Seller's
documents, instruments and other records
(including credit files and computer tapes or
disks) that (1) evidence or will evidence or
record Receivables sold by such Seller and (2) are
otherwise necessary or desirable to effect
20
Collections of such Purchased Receivables
(collectively, the "Documents") and (y) deliver
the Documents to the Company or its designee at a
place designated by the Company;
(D) each Seller hereby irrevocably
authorizes the Company or its designee to take any
and all steps in such Seller's name and on such
Seller's behalf necessary or desirable, in the
reasonable opinion of the Company, to collect all
amounts due under the Purchased Receivables,
including endorsing such Seller's name on checks
and other instruments representing collections,
enforcing the Purchased Receivables and exercising
all rights and remedies in respect thereof; and
(E) upon request of the Company, or upon
termination of the Company's obligations pursuant
to Section 6.01, each Seller will (x) deliver to
the Company all licenses, rights, computer
programs, related material, computer tapes, disks,
cassettes and data necessary to the immediate
collection of the Purchased Receivables by the
Company, or a party designated by the Company,
with or without the participation of any Seller
and (y) make such arrangements with respect to the
collection of the Purchased Receivables as may be
reasonably required by the Company.
SECTION 5.02. Negative Covenants of the Sellers. So long as the Company
shall have any interest in any Purchased Receivables or until the Purchase
Termination Date shall have occurred, whichever is later, each Seller shall not,
unless the Company otherwise consents in writing:
(a) Liens. Except as otherwise herein provided, sell, assign
(by operation of law or otherwise) or otherwise dispose of, or create
or suffer to exist any Lien upon or with respect to, any Purchased
Receivables, or assign any right to receive proceeds in respect thereof
except for Liens created or imposed hereunder or under the Security
Agreement.
(b) Extension or Amendment of Receivables. Extend, amend or
otherwise modify, or attempt or purport to extend, amend or otherwise
modify, the terms of any Purchased Receivables, except in accordance
with the terms of the Policies.
(c) Change in Payment Instructions to Obligors. Instruct the
Obligors of any Purchased Receivables to make any payments with respect
to any Receivables other than to a Lockbox Account or by wire transfer
to the Concentration Account.
(d) Change in Name. Change its name, identity or corporate
structure in any manner which would or might make any financing
statement or continuation statement relating to this Agreement
seriously misleading within the meaning of Section
21
9-402(7) of the UCC.
(e) Modification of Ledger. Delete or otherwise modify the
marking on the electronic ledger referred to in Section 5.01(g).
(f) Accounting of Purchases. Prepare any financial statements
which shall account for the transactions contemplated hereby (other
than capital contributions contemplated hereby) in any manner other
than as sales of the Purchased Receivables by such Seller to the
Company or in any other respect account for or treat the transactions
contemplated hereby (including for accounting purposes and, where taxes
are not consolidated, for tax reporting purposes, except as required by
law) (other than capital contributions contemplated hereby) in any
manner other than as sales of the Purchased Receivables by such Seller
to the Company.
ARTICLE VI
PURCHASE TERMINATION EVENTS
SECTION 6.01. Purchase Termination Events. If any of the following
events (each, a "Purchase Termination Event") shall occur and be continuing:
(a) any representation or warranty made or deemed made by or
on behalf of any Seller under or in connection with this Agreement or
any Settlement Report or other information or report delivered by any
Seller pursuant hereto shall prove to have been false or incorrect in
any material respect when made or deemed made;
(b) any Seller shall fail to (i) perform or observe any term,
covenant or agreement contained in Section 5.01(c), 5.01(f), 5.01(g),
5.01(h), 5.01(i), 5.01(k), 5.01(l), or 5.01(n), 5.01(o), 5.01(p) or
5.01(r) or Section 5.02 or (ii) make any payment or deposit to be made
by it hereunder when the same becomes due and payable;
(c) any Seller shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed and any such failure shall remain unremedied
for ten days;
(d) any Purchase Document shall cease to be in full force and
effect or the Liquidity Commitments shall have been terminated or an
"Amortization Event" shall have occurred under the Loan Agreement;
(e) (i) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of any Seller in an
involuntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
which decree or order is not stayed, or any other similar relief shall
be granted under any applicable federal or state law or (ii) an
involuntary case is commenced against any Seller
22
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having
similar powers over Seller, or over all or a substantial part of its
respective property, shall have been entered; or an interim receiver,
trustee or other custodian of any Seller for all or a substantial part
of its respective property is involuntarily appointed; or a warrant of
attachment, execution or similar process is issued against any
substantial part of the property of any Seller, and the continuance of
any such events in subclause (ii) for 60 days unless dismissed, bonded
or discharged;
(f) any Seller shall have an order for relief entered with
respect to it or shall commence a voluntary case under the Bankruptcy
Code or any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or the making
by any Seller of any assignment for the benefit of creditors; or the
inability or failure of any Seller, or the admission by any Seller in
writing of its inability to pay its debts as such debts become due; or
the Board of Directors of any Seller (or any committee thereof) adopts
any resolution or otherwise authorizes action to approve any of the
foregoing;
then, and in any such event, the Company may, by notice to each Seller declare
its obligation to acquire Receivables from such Seller to be terminated,
whereupon such obligation shall forthwith be terminated; provided, however, that
upon the occurrence of a Termination Event described in paragraph (e) or (f)
above or upon termination of the Liquidity Commitments pursuant to the Loan
Agreement, the Company's obligations to purchase Receivables from the Sellers
will automatically terminate without notice to any of the Sellers (which notice
is hereby waived by each of the Sellers).
SECTION 6.02. Remedies. If a Purchase Termination Event has occurred
and is continuing the Company (and its assignees) shall have all of the rights
and remedies provided to a secured creditor or a purchaser of accounts under the
UCC by applicable law in respect thereto.
ARTICLE VII
INDEMNIFICATION
SECTION 7.01. Indemnities by the Sellers. Without limiting any other
rights that the Company may have under this Agreement or under applicable law,
each Seller hereby agrees to indemnify the Company from and against any and all
claims, losses and liabilities (including reasonable attorneys' fees) (all the
foregoing being collectively referred to as "Indemnified Amounts") arising out
of, resulting from or based on the arrangements created by, this Agreement and
the actions of the Servicer in its capacity as the Servicer, or in respect of
23
any Ineligible Receivable, excluding, however, Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of the
Company. Without limiting or being limited by the foregoing, each Seller shall
pay on demand to the Company any and all amounts necessary to indemnify the
Company from and against any and all Indemnified Amounts (without duplication)
relating to or resulting from:
(a) the sale of any Purchased Receivable of any Seller that is
designated on the next Weekly Report following the sale to be an
Eligible Receivable and is determined to have been at the date of such
sale an Ineligible Receivable or any Receivable which thereafter
becomes subject to a Dilutive Credit;
(b) reliance on any representation or warranty (other than any
representation or warranty contained in Sections 4.02(c), 4.02(f) or
4.02(i) to the extent any such representation or warranty does not
relate to the Receivables) or statement made or deemed made by any
Seller (or any of its officers) under or in connection with this
Agreement, in any certificate delivered pursuant to this Agreement or
in any other Transaction Document that, shall have been false or
incorrect in any material respect when made or deemed made;
(c) the failure by any Seller to comply with any applicable
law, rule or regulation with respect to any Purchased Receivable, or
the nonconformity of any Receivable with any such applicable law, rule
or regulation;
(d) the failure to have filed, or any delay 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 Purchased Receivables;
(e) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment
of any Purchased Receivable of any Seller (including, without
limitation, a defense based on such Purchased Receivable not being a
legal, valid and binding obligation of such Obligor enforceable against
it in accordance with its terms or any other event or circumstance that
would give rise to a Dilutive Credit) or any other claim resulting from
the sale of the merchandise or services related to any such Purchased
Receivable or the furnishing or failure to furnish such merchandise or
services;
(f) any failure of any Seller to perform its duties or
obligations under this Agreement;
(g) any products liability claim arising out of or in
connection with merchandise, insurance or service that are the subject
of any Receivable;
(h) the commingling of Collections of Purchased Receivables at
any time with other funds;
24
(i) any investigation, litigation or proceeding in respect of
this Agreement or any Receivable;
(j) the payment by the Company of any taxes owed by any of the
Sellers, including federal, state or local income taxes, excise taxes
or business taxes; or
(k) any current or future intangible property taxes, charges
or similar levies imposed on the Company or any Person to whom the
Company has an indemnification obligation with respect thereto that
arise from or otherwise relate to the ownership of the Receivables or
any interest therein.
Notwithstanding the foregoing, no Seller shall under any circumstances indemnify
the Company for any Indemnified Amounts that result from a default by an Obligor
with respect to any Receivables, other than as described in clause (e) above or
resulting from the circumstances described in clause (a) or (f) above. The
indemnity under clause (a) above shall on any day equal (x) with respect to
Receivables that have become subject to Dilutive Credits on such day, the
aggregate amount of any such Dilutive Credits and (y) with respect to
Receivables that have been determined on such day to have been Ineligible
Receivables at the date of sale thereof, the lesser of (a) the face amount of
such Ineligible Receivables and (b) the difference between (i) the aggregate
amount of outstanding payment obligations of the Company pursuant to the terms
of the Loan Agreement (other than payment obligations to Affiliates of the
Company) and (ii) the aggregate amount of cash Collections that are available
for distribution on such day from the Collection Deposit Account. All
Indemnified Amounts paid to the Company shall be deposited in the Collection
Deposit Account for application pursuant to the terms thereof.
SECTION 7.02. Indemnities by the Company. Without limiting any other
rights that any Seller may have hereunder or under applicable law, the Company
hereby agrees to indemnify each Seller from and against any and all claims,
losses and liabilities (including reasonable attorneys' fees) arising out of or
resulting from any breach of contract by the Company or such Seller's reliance
on any representation or warranty made by the Company in this Agreement, in any
certificate delivered pursuant to this Agreement or in any other Transaction
Document that, shall have been false or incorrect in any material respect when
made or deemed made.
ARTICLE VIII
SUBORDINATED NOTE; PREFERRED STOCK
SECTION 8.01. Subordinated Note. The Company has issued to BII a
subordinated note substantially in the form of Exhibit C (together with any
amendments or modifications thereto and or replacements thereof, the
"Subordinated Note"). The aggregate principal amount of the Subordinated Note at
any time shall be equal to the difference between (a) the aggregate principal
amount of the issuance of and each addition to the principal amount of such
Subordinated Note (or a predecessor Subordinated Note under the Prior Sale
Agreement)
25
pursuant to the terms of Section 2.03 minus (b) the aggregate amount of all
payments made in respect of the principal of such Subordinated Note; provided,
that Subordinated Note may be increased on any day only to the extent that the
aggregate principal amount of the Subordinated Note outstanding on such day
shall not exceed an amount equal to the result of (a) the Borrowing Base minus
Aggregate Outstandings; plus (b) the result of 25% multiplied by the Required
Reserves, calculated using the information set forth on the most recent Weekly
Report. Interest on the principal amount of the Subordinated Note shall accrue
on the last day of each fiscal month at the "Prime Rate" as published from time
to time in the Wall Street Journal plus 3% from and including the date of
issuance thereof and shall be paid on each Monthly Settlement Date with respect
to amounts accrued and not paid as of the last day of the preceding fiscal month
and/or the Maturity Date; provided that such interest may be prepaid at any
time. Principal not prepaid pursuant to the terms hereof and of the other
Purchase Documents shall be payable on the Maturity Date. Default in the payment
of principal or interest under the Subordinated Note shall not constitute a
Purchase Termination Event hereunder or an Amortization Event under the Loan
Agreement.
SECTION 8.02. Preferred Stock. The Company may issue to each Seller or
to BII shares of Preferred Stock on each Payment Date. The dividend rate,
redemption price and liquidation preference of the Preferred Stock shall be set
forth in the resolutions of the Board of Directors of the Company in respect of
the Preferred Stock (the "Certificate of Designation").
SECTION 8.03. Restructuring on Transfer of Subordinated Note and
Preferred Stock. None of the Subordinated Note and Preferred Stock, or any right
of BII to receive payments thereunder, shall be assigned, transferred,
exchanged, pledged, hypothecated, participated or otherwise conveyed except as
contemplated pursuant to the terms of the BII Credit Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement, or consent to any departure by any Seller therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Company and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 9.02. Notices, Etc. Unless otherwise provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, telecopied, telexed or sent by United
States mail and shall be deemed to have been given when delivered in person,
receipt of telecopy or telex or four Business Days after depositing it in the
United States mail, registered or certified, with postage prepaid and properly
addressed. For the purposes hereof, the addresses of the parties hereto (until
notice of a change thereof is delivered as provided in this Section 9.02) shall
be:
(a) if to the Company, to it at 2775 Highway 40, Suite No.
26
522, P.O. Box 1449, Verdi, Nevada 84939-1449, Attention: General
Counsel; and
(b) if to a Seller, to it at its address (or telecopy number)
set forth in Schedule VI.
SECTION 9.03. No Waiver; Remedies. No failure on the part of the
Company to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 9.04. Binding Effect; Governing Law. This Agreement shall
become effective when it shall have been executed by the Company and each
Seller. From and after the date this Agreement shall have so become effective,
this Agreement shall be binding upon and inure to the benefit of the Company and
each Seller and their respective successors assigns, except that no Seller shall
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Company. 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 such time, after the Purchase
Termination Date, as the Company shall not have any interest in any Purchased
Receivables; provided, however, that the indemnification provisions of Article
VII shall be continuing and shall survive any termination of this Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION
OF THE COMPANY'S INTEREST IN THE ELIGIBLE RECEIVABLES, OR REMEDIES HEREUNDER IN
RESPECT THEREOF, MAY BE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK.
SECTION 9.05. Costs, Expenses and Taxes. In addition to the rights of
indemnification granted to the Company under Article VII, the Sellers jointly
and severally agree to pay on demand all reasonable costs and expenses of the
Company in connection with the preparation, execution and delivery of this
Agreement and the documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Company with respect thereto and with respect to advising the Company as to its
rights and remedies under this Agreement and all costs and expenses (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement and the documents to be delivered hereunder. In addition, each
Seller jointly and severally agrees to pay any and all stamp and other taxes and
fees payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Agreement or the other documents to be
delivered hereunder, and agree to hold the Company harmless from and against any
and all liabilities with respect to or resulting from any delay in paying or
omitting to pay such taxes and fees.
27
SECTION 9.06. Headings. Section headings and the Table of Contents used
in this Agreement are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
SECTION 9.07. Grant of License to Use Patents and Trademarks. For the
purpose of enabling the Company or a Successor Servicer to perform the functions
of servicing and collecting the Receivables upon a Purchase Termination Event,
each Seller hereby grants to the Company and shall be deemed to grant to any
Successor Servicer an irrevocable, non-exclusive license (exercisable without
payment of royalty or other compensation to either Seller) to use, license or
sublicense any patent, copyright, trade name, trademark or similar rights or
properties now owned or hereafter acquired by either Seller, and whenever the
same may be located, and including in such license reasonable access to all
media in which any of the licensed items may be recorded or stored and to all
computer and automatic machinery software and programs used for the compilation
or printout thereof. The aforementioned servicing and collecting functions shall
be performed in accordance with customary business practices and in a manner
which will not materially adversely affect any of such licenses or licensed
items.
SECTION 9.08. Acknowledgment of Transaction Documents. Each Seller
hereby acknowledges and consents to the execution, delivery and performance of
the Loan Agreement, the Security Agreement, the Facility Agreement and the other
Transaction Documents and the grant of a security interest in the Company's
interest in the Receivables to the Collateral Agent. Each Seller agrees that any
successor in the interest of the Company to the Receivables and Related Security
may enforce this Agreement to the same extent as the Company.
SECTION 9.09. Waiver of Jury Trial. Each party hereto waives, to the
fullest extent permitted by applicable law, any right it may have to a trial by
jury in respect of any litigation directly or indirectly arising out of, under
or in connection with this Agreement.
SECTION 9.10. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
enforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 9.11. Counterparts. This Agreement and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. Delivery of any
executed counterpart of any signature page to this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Agreement.
SECTION 9.12. Jurisdiction; Consent to Service of Process. (a) Each
28
Seller 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 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 such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Each Seller hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection 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 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.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.02. Nothing in this
Agreement will affect the right of any party of this Agreement to serve process
in any other manner permitted by law.
29
IN WITNESS WHEREOF, each Seller and the Company have caused
this Agreement to be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
B.I. FUNDING, INC.,
by: /s/Mary Ellen Ramseyer
Name: Mary Ellen Ramseyer
Title: Assistant Secretary
BURLINGTON INDUSTRIES, INC.,
individually and as a Servicer,
by: /s/Lynn L. Lane
Name: Lynn L. Lane
Title: Vice President, Treasurer
and Investor Relations
B.I. TRANSPORTATION, INC.,
by: /s/Lynn L. Lane
Name: Lynn L. Lane
Title: Vice President and Treasurer
BURLINGTON FABRICS INC.,
by: /s/Lynn L. Lane
Name: Lynn L. Lane
Title: Vice President and Treasurer
BURLINGTON APPAREL
SERVICES COMPANY
by: /s/Lynn L. Lane
Name: Lynn L. Lane
Title: Vice President and Treasurer
BURLINGTON INTERNATIONAL
SERVICES COMPANY
by: /s/Lynn L. Lane
Name: Lynn L. Lane
Title: Vice President and Treasurer
THE BACOVA GUILD, LTD.
by: /s/Lynn L. Lane
Name: Lynn L. Lane
Title: Vice President and Treasurer
SCHEDULE I
B.I. FUNDING, INC.
BOARD OF DIRECTORS
Barbara K. Eisenberg
Lynn L. Lane
Charles E. Peters, Jr.
Roy M. Phipps, Jr.
Mary Ellen Ramsayer
Kenneth E. Tutterow
OFFICERS
Charles E. Peters, Jr. President
John D. Englar Senior Vice President
Barbara K. Eisenberg Vice President and Secretary
Lynn L. Lane Vice President and Treasurer
Robert A. Wicker Vice President, General Counsel and
Assistant Secretary
Mary Ellen Ramsayer Assistant Secretary and Assistant
Treasurer
Randall A. Hanson Assistant Secretary
Roy M. Phipps, Jr. Assistant Treasurer
SCHEDULE II
Fiscal Months and Fiscal Quarters
See attached.
SCHEDULE III
BURLINGTON INDUSTRIES, INC.
UNITED STATES TRADENAMES
AMERICAN LIFESTYLES
B.I.T.
B.I. TRANSPORTATION, INC.
BURLINGTON
BURLINGTON DENIM
BURLINGTON FABRICS
BURLINGTON GLOBAL DENIM
BGD
BURLINGTON HOUSE
BURLINGTON HOUSE AREA RUGS and BHAR
BURLINGTON INTERNATIONAL TRAFFIC
BURLINGTON APPAREL SERVICES
BURLINGTON KNITTED FABRICS
BURLINGTON MADISON YARN
BURLINGTON MENSWEAR
BURLINGTON MS.
BURLINGTON SPORTSWEAR
BURLINGTON WORLDWIDE
CHARM-TRED
KLOPMAN
LEES
LEES CARPETS
MONTICELLO
RAEFORD
SCHEDULE IV
Accounts
1.) Ms. Veronica Smith Account #71-49484
Lockbox Processing Manager Box #96217 - Chicago
Bank of America, N.A. Box #96217 - Los Angeles
840 S. Canal Street
6th Floor
Chicago, IL 60293
Phone: (312) 974-0686
Fax: (312) 828-2391
2.) Mr. Nick Fulginiti Account #0105-2064
Vice President Box #8500-S2485
Corestates Financial
FC 1-2-11-7
P.O. Box 7618
Philadelphia, PA 19101-7618
Phone: (215) 973-5792
Fax: (215) 786-8529
3.) Mr. Haywood Edmundson
Senior Vice President
Wachovia Bank, N.A.
100 North Main Street
Winston-Salem, NC 27150-7202
Phone: (910) 732-7614
Fax: (910) 732-6935
4.) Mr. Michael Lewis Account #3562-014671
Customer Support Supervisor Box #75080
Wachovia Lockbox Services
P.O. Box 31608
Charlotte, NC 28231
Phone: (704) 548-4172
Fax: (704) 548-4159
5.) Ms. Sally Perkins Account #3562-014671
Customer Service Manager Box #101876
Wachovia Lockbox Services
3585 Atlanta Avenue
Hapeville, GA 30354
Phone: (404) 559-2552
Fax: (404) 559-2562
SCHEDULE V
Location of Records
Chief place of business and chief executive office for BII, BTI, BFI, BASC and
BISC:
3330 West Friendly Avenue
Greensboro, North Carolina 27410
Chief place of business and chief executive office for Bacova:
1 Main Street
Bacova, Virginia 24412
Offices where all books, records and documents evidencing Purchases Receivables
are located:
BII
3330 West Friendly Avenue Monticello Plant
Greensboro, North Carolina 27410 Monticello, Arkansas
Reidsville Drapery Plant Mayfair Plant
Reidsville, North Carolina Burlington, North Carolina
Burlington House Plant 1345 Avenue of the Americas
Burlington, North Carolina New York, New York 10105
Clarksville Plant Burlington Terminal 1/
-
Clarksville, Virginia Burlington, North Carolina
Hurt Plant Burlington Terminal
Altavista, Virginia Burlington, North Carolina
Statesville Plant 1345 Avenue of the Americas
Statesville, North Carolina New York, New York 10105
Plant Sedgefield
Jamestown, North Carolina
BTI
- ---
3330 West Friendly Avenue
Greensboro, North Carolina 27410
BFI
- ---
3330 West Friendly Avenue
Greensboro, North Carolina 27410
- --------
1/ No chattel paper is located in this facility.
BASC
3330 West Friendly Avenue
Greensboro, North Carolina 27410
BISC
3330 West Friendly Avenue
Greensboro, North Carolina 27410
Bacova
3330 West Friendly Avenue
Greensboro, North Carolina 27410
1 Main Street
Bacova, Virginia 24412
SCHEDULE VI
Notices
Burlington Industries, Inc.
3330 West Friendly Avenue
Greensboro, NC 27410
Attention: General Counsel
Burlington Fabrics, Inc.
3330 West Friendly Avenue
Greensboro, NC 27410
Attention: General Counsel
B.I. Transportation, Inc.
3330 West Friendly Avenue
Greensboro, NC 27410
Attention: General Counsel
Burlington Apparel Services Company
3330 West Friendly Avenue
Greensboro, NC 27410
Attention: General Counsel
Burlington International Services Company
3330 West Friendly Avenue
Greensboro, NC 27410
Attention: General Counsel
The Bacova Guild, Ltd.
3330 West Friendly Avenue
Greensboro, NC 27410
Attention: General Counsel
B.I. FUNDING, INC.
Monthly Settlement Statement
Monthly Settlement Statement
Fiscal Period Beginning
Fiscal Period Ending
The undersigned, a Financial Officer of Burlington Industries, Inc., as
Servicer is delivering this Monthly Settlement Statement pursuant to (i) the
Amended and Restated Facility Agreement, dated as of December 10, 1997, among
B.I. Funding Inc. (the "Company"), Burlington Industries, Inc., as Servicer, and
Wachovia Bank, N.A. ("Wachovia"), as Agent and Collateral Agent, and (ii) the
Loan Agreement, dated as of December 10, 1997 (the "Loan Agreement"), among the
Company, the financial institutions as are or may become parties thereto (the
"Liquidity Lenders") and Wachovia, as Agent for the Lenders. The undersigned
certifies that (i) the attached is a Monthly Settlement Statement (as such term
is defined in Annex Z to the Loan Agreement), (ii) the information provided
therein is true, accurate and complete in all respects as of the date provided
thereof and (iii) as of the date hereof no Amortization Event or Potential
Amortization Event has occurred.
Name:
Title:
EXHIBIT B
Burlington Industries, Inc.
Fax: 910-379-2245
Phone: 910-379-2155
B.I. FUNDING, INC.
Weekly Report Dated ____________, 199_
Date of Processing as of ________________, 199_
The undersigned, a Financial Officer of Burlington Industries, Inc., as
Servicer, is delivering this Weekly Report pursuant to (i) the Amended and
Restated Facility Agreement, dated as of December 10, 1997, among B.I. Funding
Inc. (the "Company"), Burlington Industries, Inc., as Servicer, and Wachovia
Bank, N.A. ("Wachovia"), as Agent and Collateral Agent, and (ii) the Loan
Agreement, dated as of December 10, 1997 (the "Loan Agreement"), among the
Company, the financial institutions as are or may become parties thereto (the
"Liquidity Lenders") and Wachovia, as Agent for the Lenders. The undersigned
certifies that (i) the attached is a Weekly Report as such term is defined in
Annex Z of the Loan Agreement, (ii) the information provided therein is
materially accurate as of the date provided therefor unless, and to the extent
that, such information is amended or corrected by the Servicer within five
Business Days as of the date hereof, in which case such information, as so
amended or corrected, is materially accurate as of the date provided therefor;
and (iii) as of the date hereof no Amortization Event or Potential Amortization
Event has occurred and is continuing.
Name:
Title:
EXHIBIT C
[FORM OF]
SUBORDINATED NOTE
[Date]
B.I. FUNDING, INC., a Delaware corporation (the "Company"), hereby
promises to pay to the order of BURLINGTON INDUSTRIES, INC., a Delaware
corporation ("BII"), the principal amount of this Subordinated Note, determined
as described below, together with interest thereon at a rate per annum equal to
the "Prime Rate" as published from time to time in the Wall Street Journal plus
3% in lawful money of the United States of America. Capitalized terms used
herein but not defined herein shall have the meanings assigned to such terms in
the Amended and Restated Receivables Purchase Agreement dated as of December 10,
1997, among the Company, Burlington Industries, Inc., B.I. Transportation, Inc.,
Burlington Fabrics Inc., Burlington Apparel Services Company, Burlington
International Services Company and The Bacova Guild, Ltd. (such agreement, as it
may from time to time be amended, supplemented or otherwise modified in
accordance with its terms, the "Purchase Agreement").
The principal amount of this Subordinated Note at any time shall be
determined in accordance with the provisions of Article VIII of the Purchase
Agreement. Payments of principal of this Subordinated Note shall be made on the
Maturity Date (provided that principal may be prepaid at any time). Payments of
interest on this Subordinated Note shall be paid on each Monthly Settlement Date
(with respect to interest accrued as of the end of the preceding fiscal month)
and on the Maturity Date (provided that interest may be prepaid at any time) by
wire transfer of immediately available funds to such account of the Seller as
the Seller may designate in writing. Notwithstanding the foregoing, no payments
of interest or principal may be made under this Subordinated Note at any time
except as permitted under the Subordination Agreement (as defined below).
The indebtedness evidenced by this instrument is subordinated to the
prior payment in full of the Senior Obligations (as defined in the Subordination
Agreement hereinafter referred to) pursuant to, and to the extent provided in,
the Subordination Agreement, Consent and Acknowledgment dated as of December 10,
1997, as amended, supplemented or otherwise modified from time to time (the
"Subordination Agreement") among the maker hereof, the payee named herein and
certain other parties. This Subordinated Note is the Subordinated Note referred
to in the Purchase Agreement, and is subordinate and junior in right of payment
to all the Obligations to the extent and in the manner provided in the
Subordination Agreement.
The Company hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
This Subordinated Note amends and restates the Subordinated Note dated
March 26, 1992 (the "Prior Note"), payable by the Company to the order of BII
for the benefit of the Sellers (as defined in the Purchase Agreement). All
indebtedness outstanding under the Prior Note shall be deemed to be outstanding
hereunder, and nothing herein shall be deemed to evidence payment or release of
such indebtedness.
THIS SUBORDINATED NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
B.I. FUNDING, INC.
by
Title: