[Exhibit 10.4]
- - --------------------------------------------------------------------------
AMENDED AND RESTATED
MASTER AGREEMENT OF SALE
Dated as of September 30, 1998
between
WARNACO INC.,
as Originator
and
GREGORY STREET, INC.,
as Buyer and as Servicer
- - --------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I
PURCHASES AND SALES
1.1. Purchases and Sales.......................................2
1.2. Timing of Purchases.......................................3
1.3. Consideration for Purchases...............................3
1.4. Purchase and Sale Termination Date........................3
1.5. Intention of the Parties..................................3
ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1. Calculation of Purchase Price.............................4
ARTICLE III
PAYMENT OF PURCHASE PRICE
3.1. Payment of Purchase Price.................................6
3.2. Settlement as to Specific Receivables.....................6
3.3. Reconveyance of Receivables...............................7
i
ARTICLE IV
CONDITIONS OF PURCHASES
4.1. Conditions Precedent to this Agreement and the
Initial Purchase..........................................8
4.2. Certification as to Representations and Warranties........8
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE ORIGINATOR
5.1. Representations and Warranties; Covenants.................9
ARTICLE VI
ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT
OF THE RECEIVABLES
6.1. Rights of the Buyer.......................................9
6.2. Responsibilities of the Originator........................9
6.3. Further Action Evidencing Purchases......................10
6.4. Application of Collections...............................11
ARTICLE VII
PURCHASE AND SALE TERMINATION EVENTS
7.1. Purchase and Sale Termination Events.....................12
7.2. Remedies.................................................13
ii
ARTICLE VIII
INDEMNIFICATION
8.1. Indemnities by the Originator............................14
ARTICLE IX
MISCELLANEOUS
9.1. Amendments, etc..........................................16
9.2. Notices, etc.............................................16
9.3. No Waiver; Cumulative Remedies...........................17
9.4. Binding Effect; Assignability............................17
9.5. Costs, Expenses and Taxes................................17
9.6. Governing Law and Jurisdiction...........................17
9.7. Waiver of Jury Trial.....................................18
9.8. Headings.................................................18
9.9. Execution in Counterparts................................18
9.10. Acknowledgment and Agreement............................18
SCHEDULES
SCHEDULE I Office Locations
SCHEDULE II Trade Names
EXHIBITS
EXHIBIT A Form of Purchase Report
EXHIBIT B Representations and Warranties
EXHIBIT C Covenants
iii
AMENDED AND RESTATED
MASTER AGREEMENT OF SALE
THIS AMENDED AND RESTATED MASTER AGREEMENT OF SALE (as
amended, supplemented or otherwise modified and in effect from time to time,
this "Agreement"), dated as of September 30, 1998, is between WARNACO INC., a
Delaware corporation (together with its successors and assigns, "Warnaco"), as
originator (together with its successors and assigns in such capacities, the
"Originator") and GREGORY STREET, INC., a Delaware corporation (together with
its successors and assigns in such capacities, "Gregory Street"), as buyer
(together with its successors and assigns in such capacity, the "Buyer") and as
servicer (together with its successors and assigns in such capacity, the
"Servicer").
Definitions
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in, or incorporated by reference
into, the Purchase and Sale Agreement of even date herewith (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Purchase and Sale Agreement"), between Gregory Street and Warnaco Operations
Corporation, a Delaware corporation (together with its successors and assigns,
"Warnaco Operations").
Recitals
1. The parties hereto wish to amend and restate that certain
Master Agreement of Sale, dated as of January 5, 1997, between the Originator
and the Buyer on the terms and conditions set forth herein.
2. The Originator wishes to continue selling certain
Receivables and Related Rights (collectively, the "Transferred Assets") from
time to time to the Buyer, and the Buyer is willing, on the terms and subject to
the conditions set forth herein, to purchase such Receivables and Related Rights
from the Originator.
3. The Buyer intends to sell to Warnaco Operations the
Purchased Assets acquired hereunder pursuant to the Purchase and Sale
Agreement in order to finance in part its purchases of Purchased Assets
hereunder.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
PURCHASES AND SALES
1.1. Purchases and Sales. On the terms and subject to the
conditions set forth in this Agreement (including Article IV), and in
consideration of the Purchase Price, the Originator agrees to sell to the Buyer,
and does hereby sell to the Buyer, and the Buyer agrees to purchase from the
Originator, and does hereby purchase from the Originator, without recourse and
without regard to collectibility, all of the Originator's right, title and
interest in, to and under:
(a) each Receivable in existence and owned by the
Originator as of the close of the Originator's business on the Closing Date;
(b) each Receivable generated by the Originator from the close
of the Originator's business on the Closing Date to and including the Purchase
and Sale Termination Date;
(c) all rights to, but not the obligations under, all
Related Security;
(d) all monies due or to become due with respect to any
of the foregoing;
(e) all books and records related to any of the foregoing; and
(f) all proceeds thereof (as defined in the applicable UCC)
received on or after the date hereof including, without limitation, all funds
which either are received by the Originator or the Servicer from or on behalf of
the Obligors in payment of any amounts owed (including, without limitation,
finance charges, interest and all other charges) in respect of Receivables, or
are applied to such amounts owed by the Obligors.
All purchases hereunder shall be made without recourse, but
shall be made pursuant to and in reliance upon the representations, warranties
and covenants of the Originator set forth in this Agreement and each other
Transaction Document. The Buyer's foregoing commitment to purchase such
Receivables (the "Purchased Receivables") and the proceeds and rights described
in subsections (c) through (f) of this Section 1.1 (collectively, the "Related
Rights") is herein called the "Purchase Facility".
2
1.2. Timing of Purchases. The Originator's entire right, title
and interest in (i) each Receivable in existence and owned by the Originator as
of the close of the Originator's business on the Closing Date and (ii) all
Related Rights with respect thereto shall be deemed to have been sold to the
Buyer on the Closing Date. After the Closing Date, each Receivable owned by the
Originator and all Related Rights shall be sold and assigned to the Buyer
(without any further action) upon the creation of such Receivable by the
Originator.
1.3. Consideration for Purchases. On the terms and subject to
the conditions set forth in this Agreement, the Buyer agrees to make all
Purchase Price payments to the Originator in accordance with Article III.
1.4. Purchase and Sale Termination Date. The "Purchase and
Sale Termination Date" shall be the earlier to occur of (a) the date of the
termination of this Agreement pursuant to Section 7.2 and (b) the Payment Date
immediately following the day on which the Originator shall have given notice to
the Buyer (with a copy to the Agent) that the Originator desires to terminate
this Agreement. As used herein, "Payment Date" means (i) the Closing Date and
(ii) each Business Day thereafter that the Originator is open for business.
1.5. Intention of the Parties. It is the express intent of the
parties hereto that the transfers of the Receivables and Related Rights by the
Originator to the Buyer, as contemplated by this Agreement be, and be treated
as, sales and not as loans secured by the Receivables and Related Rights. If,
however, notwithstanding the intent of the parties, such transfers are deemed to
be loans, the Originator hereby grants to the Buyer a first priority security
interest in all of the Originator's right, title and interest in and to the
Receivables and the Related Rights now existing and hereafter created, all
monies due or to become due and all amounts received with respect thereto, and
all proceeds thereof, to secure all of the Originator's obligations hereunder.
3
ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1. Calculation of Purchase Price. On each Monthly Report
Date, the Servicer shall deliver to the Buyer, the Agent and the Co-Agent a
report in substantially the form of Exhibit A (each such report being herein
called a "Purchase Report") with respect to the matters set forth therein and
the Buyer's purchases of Purchased Assets from the Originator that:
(a) are to be made on the Closing Date (in the case of the
Purchase Report to be delivered on the Closing Date), or
(b) were made during the period commencing on the Monthly
Report Date immediately preceding such Monthly Report Date to (but not
including) such Monthly Report Date (in the case of each subsequent Monthly
Report).
The "Purchase Price" (to be paid by the Buyer to the
Originator in accordance with the terms of Article III) for any Purchased Assets
that are acquired by the Buyer hereunder shall be equal to (i) the Net Face
Amount of the Purchased Assets minus (ii) the Factoring Charge related thereto.
As used herein:
"Net Face Amount" shall mean, with respect to any
Purchased Asset, the face amount of such Purchased Asset less all Trade
Discounts, if applicable, and less an established rate for chargebacks
of eight percent (8%).
"Factoring Charge" shall mean, with respect to any
Purchased Asset, an amount equal to the sum of (i) the product of (x)
the Net Face Amount of such Purchased Asset multiplied by (y) seven
percent (7%) divided by Accounts Receivable Turns plus (ii) the Net
Face Amount of such Purchased Asset multiplied by a seventy-five one
hundredth (0.75) percent administration charge.
"Accounts Receivable Turns" shall be six (6) for
Accounting Year 1998 or as otherwise agreed upon between the Originator
and the Buyer (with notice to the Agent and the Co-Agent).
4
"Accounting Year" shall mean the 52-53 week year
which the Originator and the Buyer shall agree upon, which year shall
always end on a Saturday.
"Trade Discounts" shall mean, with respect to any
Purchased Asset, all predetermined discounts extended by the Originator
to the Originator's customers for any reason whatsoever.
5
ARTICLE III
PAYMENT OF PURCHASE PRICE
3.1. Payment of Purchase Price. On the terms and subject to
the conditions set forth in this Agreement, the Buyer agrees to pay to the
Originator (i) on the Closing Date, the Purchase Price for all Purchased Assets
in existence and owned by the Originator at the close of business of the
Originator on the Closing Date and (ii) on each Business Day after the Closing
Date, the Purchase Price for all Purchased Assets with respect to which a sale
is made to the Buyer hereunder.
3.2. Settlement as to Specific Receivables and Dilution.
(a) If on the day of purchase of any Receivable from the
Originator hereunder, any of the representations or warranties of the Originator
set forth in paragraph (d), (g) or (z) of Exhibit B is not true with respect to
such Receivable or as a result of any action or inaction of the Originator, on
any day any of such representations or warranties set forth in paragraph (d),
(g) or (z) is no longer true with respect to such a Receivable, then the
Purchase Price with respect to such Receivables shall be reduced by an amount
equal to the Outstanding Balance of such Receivable and shall be accounted to
the Originator as provided in subsection (c) below; provided that if the Buyer
thereafter receives payment on account of Collections due with respect to such
Receivable, the Buyer promptly shall deliver such funds to the Originator.
(b) If, on any day, the Outstanding Balance of any Receivable
purchased hereunder is reduced or adjusted as a result of any defective,
rejected, returned goods or services, or any discount or other adjustment made
by the Originator, the Buyer or the Servicer or any offset, setoff or dispute
between the Originator or the Servicer and an Obligor as indicated on the books
of the Buyer (or, for periods prior to the Closing Date, the books of the
Originator), then the Purchase Price with respect to such Receivable shall be
reduced by the amount of such net reduction and shall be accounted to the
Originator as provided in subsection (c) below.
(c) Any reduction in the Purchase Price of any Receivable
pursuant to subsection (a) or (b) above shall be applied as a credit for the
account of the Buyer against the Purchase Price of Receivables subsequently
purchased by the Buyer from the Originator hereunder; provided, however, if
there are no purchases of Receivables from the Originator (or insufficiently
large purchases of Receivables) to
6
create a Purchase Price sufficient to so apply such credit against, the amount
of such credit shall be paid in cash to the Buyer by the Originator in the
manner to be determined at such time between the Buyer and the Originator;
provided, further, that at any time (y) when a Termination Event or Unmatured
Termination Event exists under the Receivables Purchase Agreement or (z) on or
after the Purchase and Sale Termination Date, the amount of any such credit
shall be paid by the Originator to the Buyer by deposit in immediately available
funds into the Collection Account for application by the Servicer to the same
extent as if Collections of the applicable Receivable in such amount had
actually been received on such date.
(d) Each Purchase Report (other than the Purchase Report
delivered on the Closing Date) shall include, in respect of the Receivables
purchased by the Originator, a calculation of the aggregate reductions described
in subsection (a) or (b) relating to such Receivables since the last Purchase
Report delivered hereunder, as indicated on the books of the Buyer (or, for such
period prior to the Closing Date, the books of the Originator).
3.3. Reconveyance of Receivables. In the event that the
Originator has paid to the Buyer the full Outstanding Balance of any Receivable
pursuant to Section 3.2, the Buyer shall reconvey such Receivable to the
Originator, without representation or warranty, but free and clear of all liens
created by the Buyer.
7
ARTICLE IV
CONDITIONS OF PURCHASES
4.1. Conditions Precedent to this Agreement and the Initial
Purchase. The effectiveness of this Agreement and the purchase hereunder of the
Receivables in existence on the Closing Date are each subject to the conditions
precedent that the Buyer shall have received, in form and substance satisfactory
to the Buyer, the following (the date on which such conditions have been
satisfied in full, the "Closing Date"):
(a) This Agreement, the Purchase and Sale Agreement and the
Receivables Purchase Agreement, duly executed by the parties thereto, together
with evidence that all conditions precedent thereunder shall have been met; and
(b) Such other agreements, instruments, certificates, opinions
and other documents as the Buyer shall reasonably request.
Payment by the Buyer of the Purchase Price for the Receivables
in existence at the close of business of the Originator on the Closing Date
shall be deemed to be the Buyer's agreement that all such conditions precedent
have been satisfied or waived.
4.2. Certification as to Representations and Warranties. The
Originator, by accepting the Purchase Price related to each purchase of
Purchased Assets, shall be deemed to have certified that the representations and
warranties contained in Exhibit B are true and correct on and as of such day,
with the same effect as though made on and as of such day.
8
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE ORIGINATOR
5.1. Representations and Warranties; Covenants. In order to
induce the Buyer to enter into this Agreement and to make purchases hereunder,
the Originator hereby makes the representations and warranties and hereby agrees
to perform and observe the covenants set forth in Exhibits B and C,
respectively.
ARTICLE VI
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
6.1. Rights of the Buyer. The Originator hereby authorizes the
Buyer and the Servicer or their respective designees to take any and all steps
in the Originator's name necessary or desirable, in their respective
determination, to collect all amounts due under any and all Receivables and
Related Rights, including, without limitation, endorsing the Originator's name
on checks and other instruments representing Collections and enforcing such
Receivables and the provisions of the related Contracts that concern payment
and/or enforcement of rights to payment.
Upon acquisition by the Buyer of any Transferred Asset, the
Buyer shall become entitled to all of the ownership, title, right, securities or
guaranties possessed by the Originator in respect to such Transferred Assets,
including the right to stoppage-in-transit and to replevin in any of the
merchandise covered by such Transferred Assets including, but not limited to,
any and all of the merchandise that may be rejected, returned, or reconsigned
and in any new claim or account created through the resale or exchange of
merchandise and including the right to collect and receive all moneys due
thereunder.
6.2. Responsibilities of the Originator. Anything herein to
the contrary notwithstanding:
(a) The Originator agrees to (A) direct, and hereby grants to
each of the Buyer and its assignees the authority to direct, all Obligors of
Receivables purchased by the Buyer to make payments of such Receivables directly
to the Collection Account or to post office boxes to which only the Collection
Account
9
Bank has access, and (B) to transfer any Collections that it receives directly,
into the Collection Account within two (2) Business Days of receipt thereof, and
agrees that all such Collections shall be deemed to be received in trust for the
Buyer.
(b) The Originator shall perform its obligations hereunder,
and the exercise by the Buyer or its assignees of their respective rights
hereunder shall not relieve the Originator from such obligations.
(c) None of the Buyer, the Servicer or any assignee of the
Buyer shall have any obligation or liability to any Obligor or any other third
party with respect to any Receivables, Contracts related thereto or any other
related agreements, nor shall the Buyer, the Servicer or any assignee of the
Buyer be obligated to perform any of the obligations of the Originator
thereunder.
(d) The Originator hereby grants to the Buyer, the Servicer
and the assignees of the Buyer an irrevocable power of attorney, with full power
of substitution, coupled with an interest, to take in the name of the Originator
all steps necessary or advisable to indorse, negotiate or otherwise realize on
any writing or other right of any kind held or transmitted by the Originator or
transmitted or received by the Buyer (whether or not from the Originator) in
connection with any Receivable or Related Right.
6.3. Further Action Evidencing Purchases. The Originator
agrees that from time to time, at its expense, it will promptly execute and
deliver all further instruments and documents, and take all further action that
the Buyer or the Servicer may reasonably request in order to perfect, protect or
more fully evidence the Receivables (and the Related Rights) purchased by the
Buyer hereunder, or to enable the Buyer to exercise or enforce any of its rights
hereunder or under any other Transaction Document. Without limiting the
generality of the foregoing, upon the request of the Buyer, the Originator will
(a) execute and file such financing or continuation statements, or amendments
thereto or assignments thereof, and such other instruments or notices, as may be
necessary or appropriate and (b) mark the summary master control data processing
records with a legend indicating that the Purchased Assets have been sold to the
Buyer and subsequently sold by the Buyer under the Purchase and Sale Agreement.
The Originator hereby authorizes the Buyer or its assignees to
file one or more financing or continuation statements, and amendments thereto
and assignments thereof, relative to all or any of the Receivables (and the
Related Rights) now owned by or hereafter acquired by the Originator. If the
Originator fails to perform any of its agreements or obligations under this
Agreement, the Buyer or its
10
assignees may (but shall not be required to) itself perform, or cause
performance of, such agreement or obligation, and the expenses of the Buyer or
its assignees incurred in connection therewith shall be payable by the
Originator as provided in Section 8.1.
In furtherance of the foregoing, upon written request of
Buyer, the Originator agrees to furnish the Buyer with originals or copies of
any invoices or evidence of shipment of goods underlying the Purchased Assets.
6.4. Application of Collections. Any payment by an Obligor in
respect of any indebtedness owed by it to the Originator shall, except as
otherwise specified by such Obligor or otherwise required by contract or law and
unless otherwise instructed by the Buyer or the Administrator, be applied first,
as a Collection of any Receivables of such Obligor, in the order of the age of
such Receivables, starting with the oldest of such Receivables, and second, to
any other indebtedness of such Obligor.
11
ARTICLE VII
PURCHASE AND SALE TERMINATION EVENTS
7.1. Purchase and Sale Termination Events. Each of the
following events or occurrences described in this Section 8.1 shall constitute a
"Purchase and Sale Termination Event":
(a) A Purchase and Sale Termination Event under the Purchase
and Sale Agreement shall have occurred; or
(b) The Originator shall fail to make when due any payment or
deposit to be made by the Originator under this Agreement within three (3)
Business Days of the date on which such payment or deposit is due; or
(c) Any representation or warranty made or deemed to be made
by the Originator (or any of its officers) under or in connection with this
Agreement, any other Transaction Document or any other information or report
delivered pursuant hereto or thereto shall prove to have been incorrect or
untrue in any material respect when made or deemed made or delivered; or
(d) The Originator shall fail to perform or observe in any
material respect any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed and such failure shall remain
unremedied for thirty (30) days after the Originator shall have obtained actual
knowledge or notice thereof; or
(e)(i) The Originator shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Originator seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, or other similar official for it or
for all or any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), such proceeding
shall remain undismissed or unstayed for a period of 60 days, or any of the
actions sought in such proceeding (including the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any
12
substantial part of its property) shall occur; or (ii) the Originator shall take
any corporate action to authorize any of the actions set forth in clause (i)
above in this Section 7.1(e); or
(f) either: (i) a contribution failure shall occur with
respect to any Benefit Plan sufficient to give rise to a lien under Section
302(f) of ERISA, (ii) the Internal Revenue Service shall file a notice of a lien
asserting a claim or claims pursuant to the Internal Revenue Code with regard to
any of the assets of the Originator or any ERISA Affiliate, or (iii) the Pension
Benefit Guaranty Corporation shall file notice of a lien asserting a claim
pursuant to ERISA with regard to any assets of the Originator or an ERISA
Affiliate.
(g) There shall have occurred any event that would, with the
giving of notice or the passing of time or both, have a Material Adverse Effect.
7.2. Remedies.
(i) Optional Termination. Upon the occurrence of a
Purchase and Sale Termination Event, the Buyer shall have the option by
notice to the Originator (with a copy to Warnaco Operations and the
Agent) to declare the Purchase and Sale Termination Date to have
occurred.
(ii) Remedies Cumulative. Upon any termination of the
Purchase Facility pursuant to this Section 7.2, the Buyer shall have,
in addition to all other rights and remedies under this Agreement or
otherwise, all other rights and remedies provided under the UCC of each
applicable jurisdiction and other applicable laws, which rights shall
be cumulative.
13
ARTICLE VIII
INDEMNIFICATION
8.1. Indemnities by the Originator. Without limiting any other
rights which the Buyer or any Purchase and Sale Indemnified Party may have
hereunder or under applicable law, the Originator hereby agrees to indemnify the
Buyer and each of its assigns, officers, directors, employees and agents (each
of the foregoing Persons being individually called a "Purchase and Sale
Indemnified Party"), forthwith on demand, from and against any and all claims,
damages, expenses, costs, losses and liabilities (including Attorney Costs) (all
of the foregoing being collectively referred to as "Purchase and Sale
Indemnified Amounts") awarded against or incurred by any of them arising out of
or resulting from this Agreement (whether directly or indirectly), the use of
the proceeds acquired by the Originator hereunder, the ownership of the
Receivables and Related Rights or in respect of any Receivable, Related Security
or Contract (other than with respect to the collectibility of the Receivables
for credit-related reasons). Without limiting or being limited by the foregoing,
and subject to the exclusions set forth below, the Originator shall pay on
demand to each Purchase and Sale Indemnified Party any and all amounts necessary
to indemnify such party from and against any and all Purchase and Sale
Indemnified Amounts resulting from any of the following:
(a) the transfer by the Originator of an interest in any
Receivable or Related Right to any Person other than the Buyer;
(b) the breach of any representation or warranty made by the
Originator under or in connection with this Agreement or any other Transaction
Document, or any information or report delivered by the Originator pursuant
hereto or thereto which shall have been false or incorrect in any respect when
made or deemed made;
(c) the failure by the Originator to comply with any
applicable law, rule or regulation with respect to any Receivable or the related
Contract, or the nonconformity of any Receivable or the related Contract with
any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Buyer an
ownership interest in the Receivables and the Related Rights free and clear of
any Adverse Claim;
14
(e) the failure of the Originator to file with respect to
itself, or any delay by the Originator in filing, financing statements or other
similar instruments or documents under the UCC of any applicable jurisdiction or
other applicable laws with respect to any Receivables or purported Receivables
or any Related Rights, whether at the time of any purchase or at any subsequent
time;
(f) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of the Obligor to the payment of any Receivable or
purported Receivable (including, without limitation, a defense based on such
Receivable or the related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its terms),
or any other claim resulting from the goods or services related to any such
Receivable or the furnishing of or failure to furnish such goods or services;
(g) any product liability claim arising out of or in
connection with goods or services that are the subject of any Receivable;
(h) any litigation, proceeding or investigation against the
Originator;
(i) any tax or governmental fee or charge (other than any tax
excluded pursuant to the proviso below), all interest and penalties thereon or
with respect thereto, and all out-of-pocket costs and expenses, including the
reasonable fees and expenses of counsel in defending against the same, which may
arise by reason of the purchase or ownership of the Receivables or any Related
Right connected with any such Receivables; and
(j) any failure of the Originator to perform its duties or
obligations in accordance with the provisions of this Agreement or any other
Transaction Document;
excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of a Purchase
and Sale Indemnified Party, (ii) any indemnification which has the effect of
recourse for non-payment of the Receivables due to credit reasons to any
indemnitor (except as otherwise specifically provided under this Section 8.1)
and (iii) any tax based upon or measured by net income or gross receipts.
15
ARTICLE IX
MISCELLANEOUS
9.1. Amendments, etc.
(a) The provisions of this Agreement may from time to time be
amended, modified or waived, if such amendment, modification or waiver is in
writing and consented to by the Buyer, the Servicer, the Agent and the
Originator (with respect to an amendment) or by the Buyer (with respect to a
waiver or consent by it).
(b) No failure or delay on the part of the Buyer, the
Servicer, the Originator or any third-party beneficiary in exercising any power
or right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Buyer, the Servicer or the Originator in any case shall entitle it
to any notice or demand in similar or other circumstances. No waiver or approval
by the Buyer or Servicer under this Agreement shall, except as may otherwise be
stated in such waiver or approval, be applicable to subsequent transactions. No
waiver or approval under this Agreement shall require any similar or dissimilar
waiver or approval thereafter to be granted hereunder.
9.2. Notices, etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(which shall include facsimile communication) and be sent or delivered to each
party hereto at its address set forth below or at such other address as shall be
designated by such party in a written notice to the other parties hereto.
Notices and communications by facsimile shall be effective when sent (and shall
be followed by hard copy sent by first-class mail) and notices and
communications sent by other means shall be effective when received.
If to the Buyer:
GREGORY STREET, INC.
325 Lafayette Street
Bridgeport, Connecticut 06601
Attention: Carl J. Deddens, Assistant Treasurer
Telephone: (203) 579-8040
Telecopy: (203) 334-6621
16
If to the Originator:
WARNACO INC.
90 Park Avenue, 26th Floor
New York, New York 10016
Attention: Stanley P. Silverstein
Telephone: (212) 370-8455
Telecopy: (212) 687-0480
9.3. No Waiver; Cumulative Remedies. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
9.4. Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of the Buyer and the Originator and their
respective successors and permitted assigns; provided, however, that the
Originator may not assign its rights hereunder or any interest herein or
delegate its duties hereunder without the prior consent of the Buyer and the
Agent. This Agreement shall create and constitute the continuing obligations of
the parties hereto in accordance with its terms, and shall remain in full force
and effect until the date after the Purchase and Sale Termination Date on which
the Originator has received payment in full for all Receivables and Related
Rights purchased pursuant to Section 1.1 hereof. The rights and remedies with
respect to any breach of any representation and warranty made by the Originator
pursuant to Article V and the indemnification and payment provisions of Article
VIII and Section 9.5 shall be continuing and shall survive any termination of
this Agreement.
9.5. Costs, Expenses and Taxes. In addition to the obligations
of the Originator under Article XIII, the Originator agrees to pay on demand:
(a) all reasonable costs and expenses in connection with the
enforcement of this Agreement and the other Transaction Documents; and
(b) all stamp and other similar taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing and
recording of this Agreement or the other Transaction Documents, and agrees to
indemnify each Purchase and Sale Indemnified Party against any liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
and fees.
9.6. Governing Law and Jurisdiction. This Agreement shall be
deemed to be a contract made under and governed by the internal laws of the
State of
17
New York (including for such purpose Sections 5-1401 and 5-1402 of the General
Obligations Law of the State of New York) except to the extent that the validity
or perfection of a security interest or remedies hereunder, in respect of any
particular collateral are governed by the laws of a jurisdiction other than the
State of New York.
9.7. Waiver of Jury Trial. Each of the parties hereto waives
its rights to a trial by jury of any claim or cause of action based upon or
arising out of or related to this agreement or the transactions contemplated
hereby in any action, proceeding or other litigation of any type brought by any
of the parties against any other party or parties, whether with respect to
contract claims, tort claims or otherwise. Each of the parties hereto agrees
that any such claim or cause of action shall be tried by a court trial without a
jury. Without limiting the foregoing, each of the parties hereto further agrees
that its respective right to a trial by jury is waived by operation of this
section as to any action, counterclaim or other proceeding that seeks, in whole
or in part, to challenge the validity or enforceability of this agreement or any
provision hereof. This waiver shall apply to any subsequent amendments,
renewals, supplements or modifications to this agreement.
9.8. Headings. The captions and headings of this Agreement and
any Exhibit, Schedule or Annex hereto are for convenience of reference only and
shall not affect the interpretation hereof or thereof.
9.9. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement.
9.10. Acknowledgment and Agreement. By execution below, the
Originator expressly acknowledges and agrees that all of the Buyer's rights,
title, and interests in, to, and under this Agreement shall be assigned by the
Buyer to Warnaco Operations pursuant to the Purchase and Sale Agreement, and the
Originator consents to such assignment. Each of the parties hereto acknowledges
and agrees that Warnaco Operations is a third-party beneficiary of the rights of
the Buyer arising hereunder and under the other Transaction Documents to which
the Originator is a party.
18
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Master Agreement of Sale to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
WARNACO INC.,
as Originator
By: /s/ William S. Finkelstein
----------------------------
Name: William S. Finkelstein
Title: Senior Vice President and
Chief Financial Officer
GREGORY STREET, INC., as Buyer and
as Servicer
By: /s/ Carl J. Deddens
---------------------
Name: Carl J. Deddens
Title: Assistant Treasurer
19
SCHEDULE I
OFFICE LOCATIONS
90 Park Avenue, 26th Floor
New York, New York 10016
SCHEDULE II
TRADE NAMES
Calvin Klein Mens Underwear
Calvin Klein Womens Underwear/Sleepwear
Chaps Sportswear & Dress
Warners Intimate Apparel
Olga Intimate Apparel
21
EXHIBIT A
[FORM OF PURCHASE REPORT]
A-1
EXHIBIT B
REPRESENTATIONS AND WARRANTIES
1. Representations and Warranties of the Originator. The
Originator represents and warrants as follows:
(a) The Originator is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and is
duly qualified to do business and is in good standing as a foreign corporation
in every jurisdiction where the nature of its business requires it to be so
qualified, except where the failure to be so qualified would not have a Material
Adverse Effect.
(b) The execution, delivery and performance by the Originator
of this Agreement and the other Transaction Documents to which it is a party:
(i) are within its corporate powers; (ii) have been duly authorized by all
necessary corporate action; (iii) do not contravene in any material respect or
result in a default under or conflict with: (A) its charter or by-laws, (B) any
law, rule or regulation applicable to it, (C) any indenture, loan agreement,
mortgage, deed of trust or other agreement or instrument to which it is a party
or by which it is bound, or (D) any law or any order, writ, judgment, award,
injunction or decree binding on or affecting it or any of its property; and (iv)
do not result in or require the creation of any Adverse Claim upon or with
respect to any of its properties. The Agreement and the other Transaction
Documents to which it is a party have been duly executed and delivered by the
Originator.
(c) No authorization, approval or other action by, and no
notice to or filing with, any Governmental Authority or other Person is required
for the due execution, delivery and performance by the Originator of the
Agreement or any other Transaction Document to which it is a party, other than
the Uniform Commercial Code filings referred to in Exhibit II to the Receivables
Purchase Agreement, all of which shall have been filed on or before the date of
the first purchase hereunder.
(d) Each sale of Receivables and Related Rights made by the
Originator pursuant to this Agreement shall constitute a valid sale, transfer
and assignment thereof to the Buyer, enforceable against creditors of, and
purchasers from, the Originator; and each of the Agreement and the other
Transaction Documents to which the Originator is a party constitutes its legal,
valid and binding obligation of the Originator enforceable against the
Originator in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency,
B-1
reorganization or other similar laws from time to time in effect affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(e) There is no litigation or, to the Originator's knowledge,
any proceeding or investigation pending before any court, regulatory body,
arbitrator, administrative agency, or other tribunal or governmental
instrumentality (a) asserting the invalidity of any Transaction Document, (b)
seeking to prevent the sale of Receivables and Related Rights to the Buyer or
the consummation of any of the other transactions contemplated by any
Transaction Document or (c) seeking any determination or ruling that could
reasonably be expected to have a Material Adverse Effect.
(f) No proceeds acquired by the Originator under this
Agreement will be used by the Originator to acquire any equity security of a
class that is registered pursuant to Section 12 of the Securities Exchange Act
of 1934.
(g) The Originator is the legal and beneficial owner of each
Receivable (together with the Related Rights) which is to be sold to the Buyer
hereunder, free and clear of any Adverse Claim. Whenever the Buyer makes a
purchase hereunder, it shall have acquired a valid and enforceable perfected
ownership interest in such Receivable and in the Related Security, Collections
and other proceeds with respect thereto, free and clear of any Adverse Claim. No
effective financing statement or other instrument similar in effect covering any
such Receivable is on file in any recording office, except those filed in favor
of (A) the Buyer pursuant to this Agreement, (B) Warnaco Operations pursuant to
the Purchase and Sale Agreement and (C) the Agent pursuant to the Receivables
Purchase Agreement.
(h) Each Purchase Report (if prepared by the Originator or one
of its Affiliates, or to the extent that information contained therein is
supplied by the Originator or an Affiliate), information, exhibit, financial
statement, document, book, record or report furnished or to be furnished at any
time by or on behalf of the Originator to the Agent in connection with the
Agreement or any other Transaction Document to which it is a party is or will be
complete and accurate in all material respects as of its date or as of the date
so furnished.
(i) The Originator's principal place of business and chief
executive office (as such terms are used in the UCC) is located at the address
set forth in Section 9.2 hereof, and the office where it keeps its records
concerning the
B-2
Receivables are located at the address specified on Schedule I (or at such other
locations, notified to Servicer and the Agent in accordance with paragraph 1(b)
of Exhibit C, where all actions required by Section 6.3 of this Agreement have
been taken and completed).
(j) The Originator is not in violation of any order of any
court, arbitrator or Governmental Authority, the violation of which would have a
Material Adverse Effect on the Originator.
(k) No proceeds acquired by the Originator under this
Agreement will be used for any purpose that violates any applicable law, rule or
regulation, including Regulations T, U or X of the Federal Reserve Board.
(l) Unless otherwise identified to the Buyer in the related
Purchase Report, each Receivable sold hereunder is on the date of sale an
Eligible Receivable.
(m) No transaction contemplated hereby acquires compliance
with any sales bulk act or similar law.
(n) The Originator has complied in all material respects with
the Credit and Collection Policy.
(o) The Originator has complied in all material respects with
all of the terms, covenants and agreements contained in the Agreement and the
other Transaction Documents that are applicable to it.
(p) The Originator's complete corporate name is set forth in
the preamble to the Agreement, and it does not use and has not since its
incorporation used any other corporate name, trade name, doing-business name or
fictitious name, except as set forth on Schedule II to this Agreement.
(q) The Originator is not an "investment company," or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. In addition, the Originator is not a
"holding company," a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
(r) The Originator has reviewed the areas within its business
and operations which could be adversely affected by, and has developed or is
developing
B-3
a program to address on a timely basis, the risk that certain computer
applications used by the Originator may be unable to recognize and perform
properly date-sensitive functions involving dates prior to and after December
31, 1999 (the "Year 2000 Problem"). Based on such review and program, the Year
2000 Problem could not reasonably be expected to have any Material Adverse
Effect.
(s) The Originator has filed all material tax returns and
reports required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes which are
not yet delinquent or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
generally accepted accounting principles shall have been set aside on its books.
(t) The Originator has not failed to obtain any licenses,
permits, franchises or other governmental authorizations necessary to the
ownership of its properties or to the conduct of its business, which violation
or failure to obtain would be reasonably likely to have a Material Adverse
Effect, and there are no labor controversies pending against the Originator that
have had (or are reasonably likely to have) a Material Adverse Effect.
(u) The Originator is in compliance, in all material respects,
with the requirements of (i) all applicable laws, rules, regulations, and orders
of all governmental authorities (including, without limitation, Regulation Z,
laws, rules and regulations relating to usury, truth in lending, fair credit
billing, fair credit reporting, equal credit opportunity, fair debt collection
practices and privacy and all other consumer laws applicable to the Receivables
and related Contracts) (excluding with respect to environmental matters which
are covered by clause (ii)), and (ii) to the best of its knowledge, all
applicable environmental laws, rules, regulations and orders of all governmental
authorities.
(v) The Originator is aware that Warnaco Operations, the
Investors, the Agent and the Co-Agent are entering into the Transaction
Documents to which they are parties in reliance upon the Buyer's identity as a
legal entity separate from the Originator.
(w) The purchase price payable by the Buyer to the Originator
hereunder is intended by the Originator and Buyer to be consistent with the
terms that would be obtained in an arm's-length sale.
B-4
(x) On the date hereof, and on the date of each sale of
Receivables by the Originator to the Buyer (both before and after giving effect
to such sale), the Originator shall be Solvent.
(y) The balance sheets of the Originator and its consolidated
Subsidiaries as at January 3, 1998, and the related income and retained earnings
for the fiscal year then ended, copies of which have been furnished to the Agent
and the Co-Agent, fairly present the financial condition of the Originator and
its consolidated Subsidiaries as at such date and the results of the operations
of the Originator and its Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently applied,
and since January 3, 1998 there has been no event or circumstance which has had
a Material Adverse Effect.
(z) At the time of each purchase of Receivables and Related
Rights hereunder by the Buyer, the Originator shall be deemed to represent and
warrant that: (i) it owns all of such Transferred Assets free and clear of any
liens, claims, charges, options, or encumbrances, (ii) each and every account
receivable which is part of the Transferred Assets represents a bona fide sale
covering the kind, quantity, and quality of merchandise stated therein and the
same has been delivered, and there are no counterclaims or offsets against the
amounts shown due on the related account, and the merchandise has not been sold
on consignment nor with any return privilege whatsoever, except defective
merchandise, and (iii) the Originator has no information or reason to suspect
that any Obligor under a Transferred Asset is other than a good financial risk.
B-5
EXHIBIT C
COVENANTS
1. Covenants of the Originator. From the date hereof until the
first day following the Purchase and Sale Termination Date:
(a) Compliance with Laws, Etc. The Originator shall comply in
all material respects with all applicable laws, rules, regulations and orders,
and preserve and maintain its corporate existence, rights, franchises,
qualifications and privileges, except to the extent that the failure so to
comply with such laws, rules and regulations or the failure so to preserve and
maintain such rights, franchises, qualifications and privileges would not have a
Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The
Originator: (i) shall keep its principal place of business and chief executive
office (as such terms or similar terms are used in the UCC) and the office where
it keeps its records concerning the Receivables at the address of the Originator
set forth under its name on the signature page to the Agreement or, upon 30
days' prior written notice to the Buyer and the Agent, at any other locations in
jurisdictions where all actions reasonably requested by the Buyer or its
assignees to protect and perfect the interest of the Buyer in the Receivables
and Related Rights have been taken and completed and (ii) shall provide the
Buyer and its assignees with at least 30 days' written notice before making any
change in the Originator's name or making any other change in the Originator's
identity or corporate structure (including a Change in Control) that could
render any UCC financing statement filed in connection with this Agreement
"seriously misleading" as such term (or similar term) is used in the UCC; each
notice to the Buyer or its assignees pursuant to this sentence shall set forth
the applicable change and the effective date thereof. The Originator also will
maintain and implement (or cause the Servicer to maintain and implement)
administrative and operating procedures (including an ability to recreate
records evidencing Receivables and related Contracts in the event of the
destruction of the originals thereof), and keep and maintain (or cause the
Servicer to keep and maintain) all documents, books, records, computer tapes and
disks and other information reasonably necessary or advisable for the collection
of all Receivables (including records adequate to permit, as and when necessary,
the daily identification of each Receivable and all Collections of and
adjustments to each existing Receivable).
C-1
(c) Performance and Compliance with Credit and Collection
Policy. The Originator shall fully comply in all material respects with the
Credit and Collection Policy.
(d) Sales, Liens, Etc. The Originator shall not sell, assign
(by operation of law or otherwise) or otherwise dispose of, or create or suffer
to exist any Adverse Claim upon or with respect to, any or all of its right,
title or interest in, to or under any Receivable, Related Rights or Collections,
or upon or with respect to any account to which any Collections of any
Receivables are sent), or assign any right to receive income in respect of any
items contemplated by this paragraph; it being understood that the Servicer may
sell a Defaulted Receivable if the Servicer believes in good faith that such
sale will maximize the amount to be received by the Buyer with respect to such
Receivable.
(e) Change in Credit and Collection Policy. The Originator
shall not make any material change in the character of its business or the
Credit and Collection Policy that would materially adversely affect the
collectibility of the Receivables or the enforceability of any related Contract
or the ability of the Originator to perform its obligations under the Agreement.
(f) Audits. (i) The Originator shall from time to time during
regular business hours as reasonably requested in advance (unless a Purchase and
Sale Termination Event exists) by the Buyer, Warnaco Operations, the Agent or
the Co-Agent, permit the Buyer, Warnaco Operations, the Agent or the Co-Agent,
or their agents or representatives: (A) to examine and make copies of and
abstracts from all books, records and documents (including computer tapes and
disks) in the possession or under the control of the Originator relating to
Receivables and the Related Security, including the related Contracts, and (B)
to visit the offices and properties of the Originator for the purpose of
examining such materials described in clause (i)(A) above, and to discuss
matters relating to Receivables and the Related Security or the Originator's
performance under the Transaction Documents with any of the officers, employees,
agents or contractors of the Originator, having knowledge of such matters; and
(ii) without limiting the provisions of clause (i) next above, from time to time
during regular business hours, upon five Business Days prior written notice from
the Buyer, Warnaco Operations, the Agent or the Co-Agent, permit certified
public accountants or other auditors acceptable to the Buyer, Warnaco
Operations, the Agent or the Co-Agent to conduct a review of the Originator's
books and records, at the Originator's expense, with respect to the Receivables.
(g) Change in Collection Account Bank, Collection Account and
Payment Instructions to Obligors. The Originator shall not, and shall not permit
the
C-2
Servicer to, terminate the Collection Account Bank or the Collection Account, or
make any change in its instructions to Obligors regarding payments to be made to
the Originator, such Originator, the Servicer or the Collection Account (or
related post office box), unless the Agent shall have consented thereto in
writing (which consent shall not be unreasonably withheld) and the Agent shall
have received copies of all agreements and documents (including a Collection
Account Agreement) that it may request in connection therewith.
(h) Deposits to Collection Account. The Originator shall (or
shall cause the Servicer to): (i) instruct all Obligors to make payments of all
Receivables to the Collection Account or to post office boxes to which only the
Collection Account Bank has access (and shall instruct the Collection Account
Bank to cause all items and amounts relating to such Receivables received in
such post office boxes to be removed and deposited into the Collection Account
on a daily basis), and (ii) deposit, or cause to be deposited, any Collections
received by it, the Servicer or any Originator into the Collection Account not
later than two (2) Business Days after receipt thereof. The Originator will not
(and will not permit the Servicer to) deposit or otherwise credit, or cause or
permit to be so deposited or credited, to the Collection Account cash or cash
proceeds other than Collections.
(i) Reporting Requirements. The Originator shall provide to
the Buyer and the Agent the following:
(i) As soon as available and in any event within 45
days after the end of each of the first three quarters of each fiscal
year of the Originator, (a) a copy of the unaudited balance sheet of
the Originator, as at the end of such quarter, together with unaudited
statements of earnings, stockholders' equity for such quarter and the
portion of the fiscal year through such quarter, prepared in accordance
with GAAP and certified by the chief financial officer, treasurer or
chief accounting officer of the Originator, and (b) a letter from the
chief financial officer, treasurer or chief accounting officer of the
Originator, certifying to the best knowledge of such officer, that
neither a Purchase and Sale Termination Event nor an Unmatured Purchase
and Sale Termination Event has occurred and is continuing;
(ii) As soon as available and in any event within 90
days after the end of each fiscal year of the Originator, (a) a copy of
the unaudited balance sheet of the Originator, as at the end of such
fiscal year, together with the related statements of earnings,
stockholders' equity for such fiscal year, prepared in accordance with
GAAP applied consistently throughout the periods reflected therein, and
(b) a letter from the chief financial officer,
C-3
treasurer or chief accounting officer of the Originator, certifying to
the best knowledge of such officer, that neither a Purchase and Sale
Termination Event nor an Unmatured Purchase and Sale Termination Event
has occurred and is continuing, in each case as at the end of each such
fiscal year and the date of delivery of such letter;
(iii) promptly after the filing or receiving thereof,
copies of all reports and notices that the Originator or any Affiliate
files under ERISA with the Internal Revenue Service, the Pension
Benefit Guaranty Corporation or the U.S. Department of Labor or that
the Originator or any Affiliate receives from any of the foregoing or
from any multi-employer plan (within the meaning of Section 4001(a)(3)
of ERISA) to which the Originator or any of its Affiliates is or was,
within the preceding five years, a contributing employer, in each case
in respect of the assessment of withdrawal liability or an event or
condition that could, in the aggregate, result in the imposition of
liability on the Originator and/or any such Affiliate;
(iv) promptly after the Originator obtains knowledge
thereof, notice of any: (A) material litigation, investigation or
proceeding that may exist at any time between the Originator and any
Person or (B) material litigation or proceeding relating to any
Transaction Document;
(v) promptly after the occurrence thereof, notice of
a change in the business, operations, property or financial or other
condition of the Originator or the Servicer which would have a Material
Adverse Effect; and
(vi) such other information respecting the
Receivables or the condition or operations, financial or otherwise, of
the Originator or any of its Affiliates as the Buyer, Warnaco
Operations, the Agent or the Co-Agent may from time to time reasonably
request upon reasonable notice.
(j) Certain Agreements. Without the prior written consent of
the Agent and the Co-Agent, the Originator will not amend, modify, waive, revoke
or terminate any Transaction Document to which it is a party.
(k) Extension or Amendment of Receivables. Except as provided
in Section 4.2(a) of the Receivables Purchase Agreement and the Credit and
Collection Policy, the Originator shall not extend the maturity or adjust the
Outstanding Balance or otherwise modify the terms of any Receivable, or amend,
modify or waive any term or condition of any related Contract.
C-4
(l) Receivables Not to be Evidenced by Promissory Notes or
Chattel Paper. The Originator shall not take any action to cause or permit any
Receivable purchased by it to become evidenced by any "instrument" or "chattel
paper" (as defined in the applicable UCC) unless such "instrument" or "chattel
paper" shall be delivered to the Buyer (which in turn shall deliver the same to
the Agent on behalf of the Issuers).
(m) Mergers, Acquisitions, Sales, etc. The Originator shall
not merge or consolidate with another Person (except pursuant to a merger or
consolidation involving the Originator where the Originator is the surviving
corporation), or convey, transfer, lease or otherwise dispose of (whether in one
or in a series of transactions), all or substantially all of its assets (whether
now owned or hereafter acquired), other than pursuant to this Agreement).
(n) Accounting for Purchases. The Originator shall not account
for or treat (whether in financial statements or otherwise) the transactions
contemplated hereby in any manner other than as sales of the Receivables and
Related Rights by the Originator to the Buyer.
(o) Transaction Documents. The Originator shall not enter
into, execute, deliver or otherwise become bound by any agreement, instrument,
document or other arrangement that restricts the right of the Originator to
amend, supplement, amend and restate or otherwise modify, or to extend or renew,
or to waive any right under, this Agreement or any other Transaction Documents.
C-5