Exhibit 10.23
AMENDED AND RESTATED
FACILITY AGREEMENT
Dated as of December 10, 1997
among
B. I. FUNDING, INC.,
as Company
BURLINGTON INDUSTRIES, INC.,
as Servicer
and
WACHOVIA BANK, N.A.,
as Agent and Collateral Agent
TABLE OF CONTENTS||
Page
PRELIMINARY STATEMENTS
ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION 1.01 Definitions; Construction..........................2
ARTICLE II.
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 2.01 Appointment of and Acceptance by BII of Servicing
Obligations...............................2
SECTION 2.02 Servicing Compensation; Servicer Advances..........3
SECTION 2.03 Representations and Warranties of the Servicer.....4
SECTION 2.04 Accountant's Servicing Report......................5
SECTION 2.05 Compliance Statements..............................6
SECTION 2.06 Collection Procedures..............................7
SECTION 2.07 Weekly Report......................................7
SECTION 2.08 Monthly Settlement Statement.......................8
SECTION 2.09 Servicer Resignation...............................8
SECTION 2.10 Access to Certain Documentation and Information
Regarding the Receivables.................8
SECTION 2.11 Servicer Termination Notice........................8
SECTION 2.12 Successor Servicer.................................9
SECTION 2.13 Appointment of Successor..........................10
SECTION 2.14 Covenants of the Servicer.........................10
ARTICLE III.
ALLOCATIONS AND APPLICATIONS OF PROCEEDS OF
ADVANCES, COLLECTIONS AND OTHER AMOUNTS
SECTION 3.01 Use of Advances, Servicer Advances and Collections...13
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ARTICLE IV.
MISCELLANEOUS
SECTION 4.01 Notices............................................17
SECTION 4.02 Binding Effect.....................................18
SECTION 4.03 Applicable Law.....................................18
SECTION 4.04 Waivers; Amendment.................................18
SECTION 4.05 Waiver of Jury Trial...............................18
SECTION 4.06 Severability.......................................19
SECTION 4.07 Counterparts.......................................19
SECTION 4.08 No Recourse........................................19
SECTION 4.09 Consent to Jurisdiction............................19
SECTION 4.10 Bankruptcy Petition Against the Company............20
SECTION 4.11 No Recourse........................................20
SECTION 4.12 Attorney-in-Fact...................................20
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AMENDED AND RESTATED FACILITY AGREEMENT
AMENDED AND RESTATED FACILITY AGREEMENT, dated as of December 10, 1997
among B. I. FUNDING, INC., a Delaware corporation (the "Company"), BURLINGTON
INDUSTRIES, INC., a Delaware corporation ("BII"), as Servicer, and WACHOVIA
BANK, N.A. ("Wachovia"), in its capacity as agent under the Loan Agreement (as
herein defined) (in such capacity, the "Agent") and as collateral agent under
the Security Agreement (as herein defined) (in such capacity, the "Collateral
Agent").
PRELIMINARY STATEMENTS
1. Wachovia, at the Company's request, has arranged for the extension
of financing to the Company pursuant to the terms of the Loan Agreement dated as
of December 10, 1997, as it may be amended, supplemented or modified from time
to time (as so amended, supplemented or modified, the "Loan Agreement") among
the Company, the Agent, the financial institutions party thereto (collectively,
the "Liquidity Lenders"), Blue Ridge Asset Funding Corp., as the commercial
paper lender (the "Conduit Lender") (the Liquidity Lenders and the Conduit
Lender, collectively, the "Lenders").
2. Pursuant to the Amended and Restated Receivables Purchase Agreement
dated as of December 10, 1997, as it may be amended, modified or supplemented
from time to time (as so amended, supplemented or modified, the "Purchase
Agreement") among BII, B.I. Transportation, Inc., Burlington Fabrics, Inc.,
Burlington Apparel Services Company, Burlington International Services Company,
The Bacova Guild, Ltd. and any Additional Sellers (collectively, the "Sellers")
and the Company, the Company is purchasing Receivables (such term and other
capitalized terms used herein being defined as provided in Section 1.01) from
the Sellers, and is pledging all of its right, title and interest in such
Receivables and certain other assets of the Company to the Collateral Agent
pursuant to the Security Agreement.
3. The Servicer has agreed to service the Receivables and account to
the Company, the Collateral Agent and the Agent as provided herein.
Accordingly, in consideration for the premises and the mutual covenants
contained herein and other good and valuable consideration (the sufficiency and
receipt of which are hereby acknowledged), the parties hereto agree as follows:
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ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION 1.01 Definitions; Construction. (a) Capitalized terms used and
not defined herein shall have the meanings assigned to such terms in Annex Z
attached hereto. For all purposes in this Agreement, the following terms shall
have the following meanings:
"Facilities Costs" means fixed fees payable to the Agent, the Lenders,
and to the extent the Servicer is not an Affiliate of the Company, the Servicing
Fee.
"Servicing Fee" has the meaning assigned to such term in Section 2.02.
"Servicing Fee Base" means (i) prior to the Commencement of the
Amortization Period, the Liquidity Commitment Amount, and (ii) during the
Amortization Period, the lesser of (x) the Liquidity Commitment Amount and (y)
the aggregate Outstanding Balance of Receivables held by the Company.
"Successor Servicer" shall have the meaning assigned to such term in
Section 2.13.
(b) The definitions referred to or set forth in this Article I
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, and the words "include", "includes," and
"including" shall be deemed to followed by the phrase "without limitation." All
references herein to Articles and Sections shall be deemed reference to Articles
and Sections of 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.
ARTICLE II.
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 2.01 Appointment of and Acceptance by BII of Servicing
Obligations. (a) The Company hereby appoints BII as servicer of the Receivables
(BII in such capacity and any Successor Servicer being the "Servicer"). BII
agrees to act as the Servicer under this Agreement on behalf of the Company, for
the benefit of the Agent, the Lenders and the Collateral Agent. The Servicer
shall (i) except as otherwise limited herein, manage, administer and collect the
Receivables and exercise all discretionary powers involved in such management,
administration and collections and (ii) bear all costs and expenses incurred in
connection therewith that may be necessary or advisable and permitted for
carrying out the transactions contemplated by the Transaction Documents. In the
management, administration and collection of the Receivables, the Servicer shall
exercise the same care that it has exercised in handling similar matters for its
own account, and the Servicer shall comply with the Policies. In connection with
the foregoing, the Servicer shall be
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permitted to subcontract its obligations under this Section 2.01 to any Person
satisfactory to the Company and the Required Lenders that agrees to perform such
obligations in accordance with the terms of this Agreement and the Policies;
provided, however, that the Servicer shall remain fully responsible to the
Company, the Agent, the Collateral Agent and the Lenders for any and all acts or
failures to act of any such subcontractor to the same extent as if the Servicer
were fully directly responsible for such subcontractor's duties and
responsibilities.
(b) The Servicer shall, at its own cost and expense, (i)
retain the electronic ledger used by the Servicer as a master record of
the Receivables and copies of all documents relating to each Receivable
as custodian for the Company and (ii) ▇▇▇▇ the computer files and other
physical records of 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) to the effect 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 have been sold to the Company, and a security interest in
such Receivables has been subsequently granted to the Collateral Agent
for the benefit of the Secured Parties (as defined in the Security
Agreement) pursuant to the Security Agreement.
(c) The Servicer shall notify the Company and the Agent
promptly after obtaining knowledge that any Receivable has become
subject to a Lien other than any Lien created or imposed under any
Transaction Document.
SECTION 2.02 Servicing Compensation; Servicer Advances. (a) As
compensation for its servicing activities hereunder and reimbursement for its
expenses incurred as the Servicer, the Servicer shall be entitled to receive a
servicing fee (the "Servicing Fee") from the Company equal to the Servicing Fee
Rate multiplied by the average daily Servicing Fee Base, such Servicing Fee to
be payable in respect of each fiscal month in arrears on the Monthly Settlement
Date immediately succeeding such fiscal month, commencing on the first such date
to occur after the Effective Date, calculated in each case on the basis of a
360-day year and the actual number of days elapsed. "Servicing Fee Rate" means
(x) 0.5% per annum at a time when (i) BII is the Servicer, (ii) no Amortization
Event has occurred and is continuing, and (iii) the Dilution Reserve Trigger has
not occurred, and (y) 1.0% per annum at all other times. The Servicer shall bear
all costs and expenses (without right of reimbursement) incurred in connection
with performing its activities hereunder, including fees and disbursements of
independent accountants and all other expenses incurred by the Servicer in
connection with its activities hereunder; provided, that in no event shall the
Servicer be liable for any federal, state or local income or franchise tax, or
any interest or penalties with respect thereto, assessed on the Agent, the
Collateral Agent, any Lenders or the Company. The Servicer shall be required to
pay such costs and any expenses for its own account, and shall not be entitled
to any payment therefor other than the Servicing Fee.
(b) The Servicer may elect, in its discretion, to make
unsecured advances to the Company ("Servicer Advances") to pay amounts due under
the Loan Agreement, provided that the Servicer reasonably expects to be
reimbursed therefor from Collections as provided in this Agreement. The Servicer
Advances shall be due and payable on the first Anniversary of the
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Termination Date; provided that the Servicer Advances shall be prepaid to the
extent of payments provided for in Article III.
SECTION 2.03 Representations and Warranties of the Servicer. The
Servicer represents and warrants to the Company, the Agent and each Lender that:
(a) The Servicer (i) is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation
and (ii) has all requisite corporate power and authority to own and operate its
properties, to carry on its business as now conducted and proposed to be
conducted, to enter into each Transaction Document to which it is a party and to
carry out the transactions contemplated hereby and thereby.
(b) The Servicer is qualified as a foreign corporation in each
jurisdiction where it is required to be so qualified to service the Receivables
as required by the Transaction Documents and has obtained all necessary licenses
and approvals as required under federal and state law, except in jurisdictions
where the failure to be so qualified, licensed or approved will not have a
material adverse effect on the ability of the Servicer to comply with the terms
of the Transaction Documents.
(c) The execution, delivery and performance by the Servicer of
each Transaction Document to which it is a party and the consummation of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action and will not (i) violate any provision of law applicable to it,
its Certificate of Incorporation or Bylaws, or any order, judgment or decree of
any court or other agency of government binding on it, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any of its Contractual Obligations, (iii) result in or require the
creation or imposition of any Lien upon any of its properties or assets or (iv)
require any approval of Stockholders or any approval or consent of any Persons
under any Contractual Obligation of the Servicer or any member of the Parent
Group, except for (A) such approvals or consents which will be obtained on or
before the Effective Date and are set forth in Schedule 2.03 (c) and (B) such
violations, conflicts, breaches, Liens and defaults which would not have, and
such approvals the absence of which would not have, a material adverse effect on
(1) the business, operations, property, assets or financial condition of the
Servicer, (2) the validity or enforceability of, or the ability of the Servicer
to perform its obligations under, the Transaction Documents or (3) the validity,
enforceability or priority of the Liens created by the Purchase Agreement or the
Security Agreement.
(d) The execution, delivery and performance by the Servicer of
the Transaction Documents to which it is a party and the consummation of the
transactions contemplated thereby do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body except for
filings, consents, notices, authorizations, and approvals the absence of which
would not have a material adverse effect on (i) the business, operations,
property, assets or financial condition of the Servicer, (ii) the validity or
enforceability of, or the ability of the Servicer to perform its obligations
under, the Transaction Documents or (iii) the validity, enforceability or
priority of the Liens created by the Purchase Agreement or the Security
Agreement.
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(e) This Agreement is, and the other Transaction Documents to
which the Servicer is a party, when executed and delivered by the Servicer will
be, the legally valid and binding obligations of the Servicer, enforceable
against the Servicer in accordance with their respective terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
(f) There is no action, suit, proceeding or governmental
investigation of which the Servicer has knowledge or arbitration (whether or not
purportedly on behalf of the Servicer) at law or in equity or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, pending or, to the
knowledge of the Servicer, threatened against or affecting the Servicer or any
of its property which would reasonably be expected to have a material adverse
effect on (i) the business, operations, property, assets or financial condition
of the Servicer, (ii) the validity or enforceability of, or the ability of the
Servicer to perform its obligations under, the Transaction Documents or (iii)
the validity, enforceability or priority of the Liens created by the Purchase
Agreement or the Security Agreement.
(g) (i) No representation or warranty of the Servicer
contained in this Agreement, any other Transaction Document, or any other
document, certificate or written statement furnished to the Lenders or the Agent
by or on behalf of the Servicer for use in connection with the transactions
contemplated by this Agreement (including any Settlement Report) contains any
untrue statement of a material fact or omits to state a material fact (known to
the Servicer in the case of any document not furnished by it) necessary in order
to make the statements contained herein or therein not misleading. Any
reaffirmation of the foregoing sentence is subject to any change in the facts
and conditions on which such representations and warranties are based, which
changes are required or permitted under this Agreement; provided, however, that
in all cases no representation or warranty of the Servicer contained in this
Agreement, any Transaction Document, or any other document, certificate or
written statement furnished to the Lenders or the Agent by or on behalf of any
such Person for use in connection with the transactions contemplated by this
Agreement contained at the time made any untrue statement of 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.
(ii) The historical financial statements of the
Servicer and its Subsidiaries contained in its most recent
audited financial statements, dated September 28, 1996, as
such financial statements may be supplemented from time to
time, fairly present their results of operations and financial
condition for the periods and as of the dates presented
(subject to year-end audit adjustments).
SECTION 2.04 Accountant's Servicing Report. At the direction of the
Required Lenders (which direction may be given at any time), the Agent shall
instruct the Servicer to (and the Servicer shall) cause a firm of nationally
recognized independent public accountants (who may also
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render other services to the Servicer or any Seller) to furnish a report (an
"Outside Report") to the Company and the Agent, to the effect set forth below.
The Servicer shall (i) select the firm of nationally recognized independent
public accountants to prepare the first such Outside Report for each Fiscal Year
and (ii) pay all costs and expenses of the first such Outside Report prepared
for each Fiscal Year. All other Outside Reports for such Fiscal Year shall be at
the pro rata expense of the Liquidity Lenders.
An Outside Report shall be to the effect that:
(a) such firm has made a study and evaluation, in accordance
with generally accepted auditing standards, of the Servicer's and the Sellers'
internal accounting controls relating to the Receivables,
(b) on the basis of such examination, such firm is of the
opinion that the system of internal accounting controls in effect on the date
set forth in such report, relating to the Receivables and the Collections taken
as a whole, were sufficient for the prevention and detection of errors and
irregularities in amounts that would be material,
(c) the Servicer was servicing the Receivables in compliance
with the provisions of this Agreement with which the independent public
accountants possess adequate professional knowledge and which are reasonably
subject to positive assurance by them, except for such exceptions as they
believe to be immaterial and such other exceptions as shall be set forth in such
report, and
(d) using generally accepted auditing standards, they have
compared a representative sample of Weekly Reports and Monthly Settlement
Statements randomly chosen during such period and delivered to the Company
pursuant to Sections 2.07 and 2.08 during the period covered by such report with
each Seller's and the Servicer's computer reports that were the source of such
amounts and that on the basis of such comparison, such accountants are of the
opinion that such reports are in agreement, except for such exceptions as they
believe to be immaterial and such other exceptions as shall be set forth in such
statement.
The Servicer shall make its officers and employees available (during
normal business hours and upon reasonable notice) for discussion with the
Persons preparing any such Outside Report.
SECTION 2.05 Compliance Statements. The Servicer will deliver to the
Company and the Agent on or before the date 45 days after the end of each Fiscal
Quarter, commencing with the fourth Fiscal Quarter of fiscal year 1997 of the
Company, a certificate signed by an executive officer or Financial Officer (or
any other officer or similar official responsible for the administration of the
obligations of the Servicer) (a "Responsible Officer") of the Servicer, stating
that (i) a review of the activities of the Servicer relating to the servicing of
the Receivables during the prior quarter and of performance under this Agreement
has been made under such officer's supervision, (ii) such Responsible Officer
has reviewed any reports prepared by the internal audit department or the
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independent auditors for the Servicer or the Sellers, in either case relating to
the Receivables (including the servicing thereof) for the period since the date
of the last such report (it being understood that such reports shall be prepared
at times and in form consistent with past practice), and (iii) to the best of
such Responsible Officer's knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement throughout the period covered
by such review, or, if there has been a default in the fulfillment of any such
obligations, specifying each such default known to such officers and the nature
and status thereof.
SECTION 2.06 Collection Procedures. (a) The Servicer, the Sellers and
the Company have established and shall maintain hereafter the system of
collecting and processing Collections of Receivables set forth in paragraphs (b)
through (e) below.
(b) The Obligors shall have been instructed to make payments
with respect to Receivables only to a Lockbox Account or by wire
transfer to the Concentration Account. The Servicer shall, at least as
often as once each day that is both a Business Day and a day on which
the Servicer is open for business, process such payments by recording
the amount of the payment received from the Obligor and the identity of
the Obligor, and, with the Requisite Frequency in same day funds, the
Company and the Servicer shall cause all moneys and other evidences of
payment collection (other than checks which are to have been submitted
for collection) deposited in the Lockbox Accounts to be transferred to
the Concentration Account; provided, that to the extent a Lockbox
Account is also the Concentration Account, such transfer shall be
deemed made upon deposit therein. The Company and the Servicer shall
cause all moneys and evidences of payments deposited in the
Concentration Account to be transferred with the Requisite Frequency in
same day funds (including amounts transferred on such day from any
Lockbox Account pursuant to the preceding sentence and amounts referred
to in Section 2.06(c)), to the Collection Deposit Account; provided,
that (i) if the Collateral Agent shall not have terminated the
Servicer's authority to initiate transfers as provided in the Lockbox
Agreements, such transfer shall be required only on days when the
Servicer is open for business, and (ii) during any Amortization Period
all such amounts shall be transferred from the Concentration Account to
Collection Account "B".
(c) The Servicer and the Company shall cause all Collections
otherwise received by them to be deposited in the Concentration Account
as soon as practicable after receipt thereof, but in no event later
than the Business Day after such receipt.
(d) Any funds held by the Company or the Servicer representing
Collections shall, until deposited in a Collection Account, be held in
trust by such Person for and as the Collateral Agent's property, for
the ratable benefit of the Secured Parties (as defined in the Security
Agreement).
(e) Each of the Company and the Servicer irrevocably waives
any right to set off against, or otherwise deduct from, any
Collections.
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SECTION 2.07 Weekly Report. (a) The Servicer shall prepare and deliver
to the Agent, the Collateral Agent and the Company (by telecopy) a Weekly
Report, certified by a Financial Officer or Assistant Treasurer on the Weekly
Settlement Date (containing information as of the immediately preceding Weekly
Cut-Off Date) on or before 9:00 a.m., Atlanta time on such date; provided,
however, that if a "system failure" or other similar technical failure shall
occur in the operations of the Servicer that produce data included in the Weekly
Report, such Weekly Report shall be prepared and telecopied to the Agent, the
Collateral Agent and the Company within two Business Days of the date such
Weekly Report was otherwise required to be prepared and telecopied to the Agent,
the Collateral Agent and the Company.
(b) Upon discovery of any error in any Weekly Report, the
Agent, the Company, the Servicer, and the Sellers shall confer and
shall agree upon any necessary adjustments to correct such error. Until
correction of such error, all Collections shall be retained in the
Collection Deposit Account. Unless the Agent has received actual notice
of any discrepancy, the Agent, the Lenders and the Company may rely on
such Weekly Report for all purposes hereunder, and for all purposes
under any other Transaction Document.
SECTION 2.08 Monthly Settlement Statement. On each Monthly Settlement
Statement Date, the Servicer shall, prior to 12:00 noon (Atlanta time), deliver
to the Company and the Agent, the Monthly Settlement Statement for the preceding
fiscal month certified by a Financial Officer, and the Agent shall forward a
copy of such Monthly Settlement Statement to the Lenders; provided, however,
that if a "system failure" or other similar technical failure shall occur in the
operations of the Servicer that produce data included in the Monthly Settlement
Statement, such Monthly Settlement Statement shall be prepared and provided to
the Company and the Agent within two Business Days of the date such Monthly
Settlement Statement was otherwise required to the prepared and provided to the
Company and the Agent.
SECTION 2.09 Servicer Resignation. The Servicer shall not resign from
the obligations and duties under this Agreement hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make the performance of its duties hereunder
permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced as to clause (i) above by an
opinion of counsel to such effect delivered to the Agent. No such resignation
shall become effective until a Successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with this Section
and Sections 2.11 and 2.12.
SECTION 2.10 Access to Certain Documentation and Information Regarding
the Receivables. The Servicer shall provide the Company, the Agent and their
respective representatives access to the documentation regarding the
Receivables, such access being afforded without charge but only (i) upon
reasonable request, (ii) during normal business hours, (iii) subject to the
Servicer's normal security and confidentiality procedures and (iv) at offices
designated by the Servicer. The obligation of the Servicer to provide such
reasonable access to information regarding
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the Receivables shall survive its termination as Servicer until all of the
Obligations of the Company to the Lenders under the Loan Agreement have been
satisfied in full.
SECTION 2.11 Servicer Termination Notice. If (i) an Amortization Event
shall have occurred and be continuing or (ii) there has been a failure by the
Servicer to perform its obligations as Servicer and such failure could have a
material adverse effect on the collection of the Receivables, the value of the
Collateral or the ability of the Collateral Agent to exercise its remedies under
the Security Agreement, the Agent may, at the direction of the Required Lenders,
by notice given in writing to the Servicer, the Collateral Agent and the Company
(each such notice and each notice to the Servicer referred to in the following
sentence, being a "Servicer Termination Notice") terminate all of the rights and
obligations of the Servicer under this Agreement pursuant to the terms of
Section 2.12. The Company may at any time, with the prior written consent of the
Required Lenders by notice given in writing to the Servicer and the Agent,
terminate all the rights and obligations of the Servicer pursuant to the terms
of Section 2.12. Notwithstanding any termination of the rights and obligations
of the Servicer, such terminated Servicer shall remain responsible for any acts
or omissions to act by it as Servicer prior to such termination.
SECTION 2.12 Successor Servicer. (a) After receipt by the Servicer of a
Servicer Termination Notice, or after resignation of a Servicer pursuant to
Section 2.09, and on the date that a Successor Servicer shall have been
appointed by the Collateral Agent pursuant to Section 2.13, all authority and
power of the Servicer under this Agreement shall pass to and be vested in a
Successor Servicer; and the Collateral Agent is hereby authorized and empowered
(upon the failure of the Servicer to cooperate) to execute and deliver, on
behalf of the Servicer as attorney-in-fact or otherwise, all documents and other
instruments upon the failure of the Servicer to execute or deliver such
documents or instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer of servicing
rights.
(b) The Servicer agrees to cooperate with the Collateral Agent
and such Successor Servicer in effecting the termination of the
responsibilities and rights of the Servicer to conduct servicing
hereunder, including the transfer to such Successor Servicer of all
authority of the Servicer to service the Receivables provided for under
this Agreement, including all authority over all Collections which
shall on the date of transfer be held by the Servicer for deposit, or
which shall thereafter be received with respect to the Receivables.
(c) The Servicer shall promptly transfer its electronic
records relating to the Receivables to the Successor Servicer in such
electronic form as the Successor Servicer may reasonably request and
shall promptly transfer to the Successor Servicer all other records,
correspondence and documents necessary for the continued servicing of
the Receivables in the manner and at such times as the Successor
Servicer shall reasonably request. To the extent that compliance with
this Section shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer or Company
reasonably deems to be confidential, the Successor Servicer shall be
required to enter into such customary licensing and confidentiality
agreements as the Servicer or Company shall deem necessary to protect
its interest. All costs and expenses incurred in connection with a
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transfer of servicing shall be borne by the outgoing Servicer. Each of
the Sellers and the Company shall, upon request, at all times provide
such information and assistance to the Servicer as shall be required
for the Servicer to perform its obligations hereunder.
SECTION 2.13 Appointment of Successor. (a) On and after the receipt by
the Servicer of a Servicer Termination Notice pursuant to Section 2.11, or after
resignation of a Servicer pursuant to Section 2.09, the Servicer shall continue
to perform all servicing functions under this Agreement until the date specified
in the Servicer Termination Notice or otherwise specified by the Collateral
Agent in writing or, if no such date is specified in the Servicer Termination
Notice or otherwise specified by the Collateral Agent, until a date mutually
agreed upon by the Servicer and the Collateral Agent. The Agent, after
consultation with the Lenders, shall as promptly as possible after the giving of
a Servicer Termination Notice appoint a Successor Servicer (the "Successor
Servicer") and such Successor Servicer shall accept its appointment by a written
assumption in a form acceptable to the Agent. The Agent may obtain bids from any
potential Successor Servicer.
(b) Upon its appointment, the Successor Servicer shall be
successor in all respects to the Servicer with respect to servicing
functions under this Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on BII
in its capacity as Servicer or on the Servicer by the terms and
provisions hereof, and all references in this Agreement to BII in its
capacity as Servicer or to the Servicer shall be deemed to refer to the
Successor Servicer. Any Successor Servicer that is not an Affiliate of
the Company or any of the Sellers shall expressly consent to and
acknowledge the security interest granted to the Collateral Agent
pursuant to the Security Agreement.
(c) All authority and power granted to the Successor Servicer
under this Agreement shall automatically cease and terminate upon
termination of this Agreement and shall pass to and be vested in the
Company and the Company is hereby authorized and empowered to execute
and deliver, on behalf of the Successor Servicer, as attorney-in-fact
or otherwise, all documents and other instruments, and to do and
accomplish all other acts or things necessary or appropriate to effect
the purposes of such transfer of servicing rights. The Successor
Servicer agrees to cooperate with the Company in effecting the
termination of the responsibilities and rights of the Successor
Servicer to conduct servicing on the Receivables. The Successor
Servicer shall transfer its electronic records relating to the
Receivables therein to the Company (or, at the request of the Company,
a Seller) in such electronic form as the Company may reasonably request
and shall transfer all other records, correspondence and documents to
the Company (or, at the request of the Company, a Seller) in the manner
and at such times as the Company shall reasonably request. To the
extent that compliance with this Section 2.13 shall require the
Successor Servicer to disclose to the Company or the Sellers
information of any kind which the Successor Servicer deems to be
confidential, the Company shall be required to enter into such
customary licensing and confidentiality agreements as the Successor
Servicer shall deem necessary to protect its interests. All costs and
expenses incurred in connection with a transfer servicing shall be
borne by the outgoing Successor Servicer.
10
SECTION 2.14 Covenants of the Servicer. The Servicer covenants that:
(a) Condition of Assets; Insurance. The Servicer shall (i)
keep all property and assets useful and necessary in its business as
Servicer in good working order and condition (normal wear and tear
excepted), (ii) maintain, with financially sound and reputable
insurance companies, insurance on all its property and assets necessary
in its business as Servicer in at least such amounts and against at
least such risks (and with such risk retention) as are usually insured
against in the same general area by companies of established repute
engaged in the same or a similar business and reasonably satisfactory
to the Agent, (iii) furnish to the Agent, upon written request, full
information as to the insurance carried, (iv) within five days of
receipt of notice from any insurer, furnish the Agent with a copy of
any notice of cancellation or material change in coverage from that
existing on the Effective Date and (v) forthwith, furnish the Agent
with notice of any cancellation or nonrenewal of coverage by the
Servicer. The Servicer shall (i) maintain disaster recovery systems and
back-up computer and other information management systems that, in the
Servicer's reasonable judgment, are sufficient to protect its business
as Servicer against material interruption or loss in the event of
damage to, or loss or destruction of, its primary computer and
information management systems and (ii) furnish to the Agent, upon
written request, full information as to such disaster recovery systems
and back-up computer and information management systems.
(b) Indemnification. (i) In any suit, proceeding or action
brought by the Agent, any Seller, the Company, the Collateral Agent or
any Lender for any sum owing with respect to any of such persons'
interest in a Receivable, the Servicer will save, indemnify and keep
the Agent, the Sellers, the Company, the Collateral Agent or such
Lender, as the case may be, harmless from and against all expense, loss
or damage suffered by reason of any defense, setoff, counterclaim,
recoupment or reduction of liability whatsoever arising out of a breach
by the Servicer of any obligation of the Servicer with respect to an
Obligor or arising out of any agreement, indebtedness or liability at
any time owing to or in favor of such Obligor or its successor from the
Servicer, and all such obligations of the Servicer shall be and remain
enforceable against and only against the Servicer and shall not be
enforceable against the Agent, the Collateral Agent, any Seller, the
Company, or any Lender, as the case may be.
(ii) The Servicer shall indemnify and hold harmless
the Agent, the Sellers, the Company, the Collateral Agent and
the Lenders against any claim, loss, liability, cost, expense,
damage or injury suffered or sustained by reason of any action
taken by the Servicer relating to any Receivable.
(c) Compliance with Requirements of Law. The Servicer shall
duly satisfy all obligations on its part to be fulfilled under or in
connection with each Receivable and the related Obligor, will maintain
in effect all qualifications required under Requirements of Law in
order to service properly each Receivable and the related Obligor and
will comply in all material respects with all other Requirements of Law
in connection with servicing each
11
Receivable and the related Obligor the failure to comply with which
would have a material adverse effect on the Lenders or the Agent.
(d) No Rescission or Cancellation. The Servicer shall not
permit any rescission or cancellation of any Receivable except as
ordered by a court of competent jurisdiction or other Governmental
Authority and except in connection with Dilutive Credits and Write-Offs
in conformity with the Policies or as otherwise permitted in the
Security Agreement.
(e) Protection of Rights. The Servicer shall not take any
action which, or omit to take any action the omission of which, would
impair the rights of the Company, the Agent, the Collateral Agent and
the Lenders in any Receivable or with respect to the related Obligor or
the rights of the Agent, nor shall it reschedule, revise or defer
payments due on any Receivable except in accordance with the Policies.
(f) Change in Payment Instructions to Obligors. The Servicer
will not instruct the Obligors of any Purchased Receivables to make any
payments with respect to such Purchased Receivables other than
hereunder or under the Security Agreement.
(g) Modification of Ledger. The Servicer will not delete or
otherwise modify the marking on the electronic ledger referred to in
Section 5.01(g) of the Purchase Agreement.
(h) Extension or Amendment of Receivables or Policies. The
Servicer will not 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, or amend or otherwise modify or waive any term or condition
of the Policies.
(i) Collection of Receivables. (i) Upon the occurrence and
during the continuance of an Amortization Event and upon the request of
the Collateral Agent, or upon the commencement of the Amortization
Period, the Servicer will deliver to the Collateral Agent all licenses,
rights, computer programs, related materials, computer tapes, cassettes
and data then owned or held by the Company necessary to the immediate
collection of the Receivables by the Collateral Agent or a party
designated by the Collateral Agent without the participation of any
Seller or the Company.
(ii) Upon the occurrence of and during the
continuance of an Amortization Event and upon the request of
the Collateral Agent, or upon the commencement of an
Amortization Period, the Servicer will deliver to the
Collateral Agent on a weekly basis, unless requested not to do
so by the Collateral Agent, backup files prepared on a daily
basis of information relating to the collection of the
Receivables that would permit the Collateral Agent, or a party
designated by the Collateral Agent, to collect the Receivables
without the participation of any Seller or the Company.
12
(j) Commingled Funds. The Servicer shall use its best efforts
to determine as promptly as possible whether any funds of any of the
Sellers or of any Affiliate of any Sellers (other than the Company)
have been commingled with the funds of the Company and separate any
such commingled funds as soon as possible thereafter.
ARTICLE III.
ALLOCATIONS AND APPLICATIONS OF PROCEEDS OF
ADVANCES, COLLECTIONS AND OTHER AMOUNTS
SECTION 3.01 Use of Advances, Servicer Advances and Collections. (a)
The proceeds of Collections and of Advances deposited in the Collection Deposit
Account, and the proceeds of any Servicer Advances, for application each
Business Day shall be applied by the Collateral Agent as follows:
On the Effective Date, and on each Business Day thereafter, as follows:
(i) On each Business Day occurring prior to the
Amortization Commencement Date,
(1) first, to the payment of Facilities Costs then
due and, to the extent any principal portion of a Servicer
Advance was used to pay Facilities Costs, the repayment to the
Servicer of such Servicer Advance,
(2) second, to the payment of interest due and
payable in respect of Advances and, to the extent any
principal portion of a Servicer Advance was used to pay
interest due and payable in respect of Advances, the repayment
to the Servicer of such Servicer Advance,
(3) third, to the payment, if any, of the principal
amount of Advances in such proportion as designated by the
Servicer (so long as the Servicer is also a Seller) and
thereafter in such proportion as BII shall direct, but in each
case only to the extent required pursuant to Section 4.1.2 of
the Loan Agreement, together with interest thereon on the
principal amount paid and, to the extent any principal portion
of a Servicer Advance was used to pay principal of the
Advances, together with interest thereon, the repayment to the
Servicer of such Servicer Advance,
(4) fourth, to the payment of the operating expenses
of the Company not included in clause first above,
(5) fifth, to the payment of increased costs and
other expenses and indemnity payments that are due to the
Collateral Agent, the Agent and the Lenders,
13
(6) sixth, to the payment of the Servicing Fee, if
the Servicer is an Affiliate of the Company, and to the
payment of interest due and payable on Servicer Advances, and
(7) seventh, at the Company's option, (A) to the
Company to enable the Company to purchase Receivables from the
Sellers pursuant to the Purchase Agreement, (B) to make
payments on account of the Subordinated Note, (C) to the
Company to enable the Company to make payments on account of
Restricted Distributions or to make loans to BII but only (1)
pursuant to a resolution of the Board of Directors of the
Company authorizing such Restricted Distribution or loan, (2)
to the extent permitted by Sections 8.2.9 and 8.2.20 (e) of
the Loan Agreement and (3) so long as no Amortization Event or
Potential Amortization Event shall have occurred and be
continuing or would occur as a result of such payment or loan,
(D) to make payments on the principal outstanding amount of
any Advances and interest thereon (together with any payments
required under Section 5.4 of the Loan Agreement, if
applicable), and (E) to set aside for repayment to any Lender
terminated pursuant to the terms of Section 3.3 (b) of the
Loan Agreement of any amounts due or to become due upon
termination;
provided, that (except for payments made to the Sellers prior to the
identification of a Borrowing Base Deficiency that may be required to be
returned pursuant to Section 2.03(b) of the Purchase Agreement) in no event
shall any Collections be distributed from the Collection Deposit Account with
respect to clauses (4), (6) or (7) above to the extent that such distribution
would result in a Borrowing Base Deficiency.
(ii) On each Business Day occurring on or after the
Amortization Commencement Date (if no Trigger Event has
occurred), all Collections and proceeds from Advances
deposited in the Collection Deposit Account for application
shall be applied by the Collateral Agent as follows:
(1) first, to set aside an amount equal to accrued
and unpaid interest in respect of Liquidity Advances or to pay
such interest if due and payable and, to the extent any
principal portion of a Servicer Advance was used to pay
interest on the Liquidity Advances, the repayment to the
Servicer of such Servicer Advance,
(2) second, to set aside an amount equal to the
principal amount of Liquidity Advances or to pay such
principal if due and payable and, to the extent any principal
portion of a Servicer Advance was used to pay principal of the
Liquidity Advances, the repayment to the Servicer of such
Servicer Advance,
(3) third, to set aside an amount equal to accrued
and unpaid interest in respect of CP Rate Advances or to pay
such interest if due and payable and, to the extent any
principal portion of a Servicer Advance was used to pay
interest on the CP Rate Advances, the repayment to the
Servicer of such Servicer Advance,
14
(4) fourth, to set aside an amount equal to the
principal amount of CP Rate Advances or to pay such principal
if due and payable and, to the extent any principal portion of
a Servicer Advance was used to pay principal on the CP Rate
Advances, the repayment to the Servicer of such Servicer
Advance,
(5) fifth, to set aside an amount equal to accrued
Facilities Costs or to pay such Facilities Costs if due and
payable and, to the extent any principal portion of a Servicer
Advance was used to pay such Facilities Costs, the repayment
to the Servicer of such Servicer Advance,
(6) sixth, to pay increased costs and other expenses
and indemnity payments that are due to the Agent, the
Collateral Agent and the Lenders,
(7) seventh, to set aside an amount equal to the
accrued Servicing Fee, if the Servicer is an Affiliate of the
Company, or to pay such Servicing Fee if due and payable and
to pay interest due and payable on Servicer Advances;
provided, that no proceeds of Liquidity Advances will be used to pay principal
of (or interest on) Liquidity Advances.
(iii) On each Business Day occurring on or after the
Amortization Commencement Date, if a Trigger Event has
occurred, all Collections and proceeds from Advances deposited
in the Collection Deposit Account for application shall be
applied by the Collateral Agent as follows:
(1) first, to pay an amount equal to accrued and
unpaid interest in respect of Liquidity Advances and, to the
extent any principal portion of a Servicer Advance was used to
pay interest on the Liquidity Advances, the repayment to the
Servicer of such Servicer Advance,
(2) second, to pay an amount equal to the principal
amount of Liquidity Advances and, to the extent any principal
portion of a Servicer Advance was used to pay principal of the
Liquidity Advances, the repayment to the Servicer of such
Servicer Advance,
(3) third, to set aside an amount equal to accrued
and unpaid interest in respect of CP Rate Advances or to pay
such interest if due and payable and, to the extent any
principal portion of a Servicer Advance was used to pay
interest on the CP Rate Advances, the repayment to the
Servicer of such Servicer Advance,
(4) fourth, to set aside an amount equal to pay the
principal amount of CP Rate Advances or to pay such principal
if due and payable and, to the extent any principal portion of
a Servicer Advance was used to pay principal on the CP Rate
Advances, the repayment to the Servicer of such Servicer
Advance,
15
(5) fifth, to pay accrued Facilities Costs and, to
the extent any principal portion of a Servicer Advance was
used to pay such Facilities Costs, the repayment to the
Servicer of such Servicer Advance,
(6) sixth, to pay increased costs and other expenses
and indemnity payments that are due to the Agent, the
Collateral Agent and the Lenders,
(7) seventh, to pay the Servicing Fee, if the
Servicer is an Affiliate of the Company and to pay interest
due and payable on Servicer Advances;
provided, that if any CP Rate Advances remain unpaid (x) the amount of
Collections applied on any day to payment of principal of (and interest on) the
Liquidity Advances shall not exceed the Trigger Percentage of such Collections,
and (y) proceeds of Liquidity Advances shall not be applied to the payment of
principal of (or interest on) Liquidity Advances.
All Collections and proceeds from Advances shall be paid by the
Collateral Agent to the Company when and as received, but only on and after the
first Business Day following the occurrence of all of the following:
(A) all Liquidity Commitments shall have been terminated;
(B) all Advances shall have been repaid in full (together with
interest thereon) (or funds for the repayment or payment in full
thereof shall have been set aside by the Collateral Agent in accordance
with paragraph (ii) or (iii) above); and
(C) all other amounts due and payable (determined as of the
first date on which the conditions specified in clauses (A) and (B)
above shall have been satisfied under any Transaction Document) to the
Lenders shall have been paid in full (or funds for the payment in full
thereof shall have been set aside by the Collateral Agent in accordance
with paragraph (ii) above) and no such amount shall be in dispute on
such first date.
(b) Prior to the Amortization Commencement Date, the Servicer
shall as soon as possible after receipt of any Collections and other
proceeds, determine whether they are not with respect to Purchased
Receivables and shall as soon as possible notify the Agent of such
determination. The Collateral Agent shall as soon as possible
thereafter transfer any Collections that are not with respect to
Purchased Receivables from the Collection Deposit Account to Collection
Account "B" for payment to the applicable Person.
(c) During any Amortization Period, the Servicer shall as soon
as possible after receipt of any Collections and other proceeds
determine whether they are Collections with respect to Purchased
Receivables or otherwise and shall as soon as possible notify the
Collateral Agent of such determination. The Collateral Agent shall as
soon as possible thereafter (i) transfer any Collections that are with
respect to Purchased Receivables from the Collection Account "B" to the
Collection Deposit Account for application pursuant to
16
the terms of paragraph (a)(ii) or (a)(iii) above and (ii) pay any
Collections that are not with respect to Purchased Receivables to the
Person entitled thereto; provided, that with respect to any Collections
for which the Collateral Agent has not been provided such a
determination by the Servicer by the end of the Business Day ten
Business Days from the date of receipt thereof, such Collections shall
be deemed to be Collections with respect to Purchased Receivables and
shall be transferred to the Collection Deposit Account, and no other
Person shall have any rights therein.
(d) All proceeds received by the Company pursuant to clause
(a) of Section 7.01 of the Purchase Agreement shall be Collections and
shall be applied under this Article III in the same manner as cash
Collections; provided, that the Collections deemed made and for which
payment has not been made by the Sellers pursuant to Section 7.01 of
the Purchase Agreement shall not be applied to payments hereunder of
obligations to any Lender or the Agent or any other obligee who is not
an Affiliate of the Company.
(e) The Servicer agrees that in making each determination with
respect to Collections and other proceeds as set forth in paragraphs
(b) or (c) above, the Servicer represents and warrants at such time
that such determination is true and correct in all material respects.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.01 Notices. 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 or sent by United States mail and shall
be deemed to have been given when delivered in person, receipt of telecopy or
telecopy or four Business Days after depositing it in the United States mail,
registered or certified, with postage prepaid and properly addressed; provided,
that notices to the Agent shall not be effective until received by such Agent.
For the purposes hereof, the addresses of the parties hereto (until notice of a
change thereof is delivered as provided in this Section 4.01) shall be:
(a) if to the Company, to it at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇.▇. ▇▇▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇;
(b) if to the Servicer, to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(c) If to the Agent or the Collateral Agent, to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-Asset Backed Finance;
(d) if to a Lender, to it at its address set forth in the Loan
Agreement.
17
SECTION 4.02 Binding Effect. This Agreement shall become effective when
it shall have been executed by the Company, the Servicer, the Agent and the
Collateral Agent and thereafter shall be binding upon and inure to the benefit
of the Company, the Servicer and the Agent and their respective successors and
assigns, except that the Company shall not have the right to assign its rights
hereunder or any interest herein without the prior consent of all the Lenders.
SECTION 4.03 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 4.04 Waivers; Amendment. (a) No failure or delay of the Agent
or the Collateral Agent in exercising any power or right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuation of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Agent or the Collateral
Agent hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Company therefrom shall in any event be
effective unless the same shall be permitted by subsection (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Company in any case
shall entitle the Company to any other or further notice or demand in similar or
other circumstances.
(b) No provision of this Agreement may be waived, amended or
modified except in accordance with Section 11.1(b) of the Loan Agreement.
(c) Notwithstanding the foregoing, the form of Weekly Report
and the form of Monthly Settlement Statement attached as Exhibits H-1 and G,
respectively, to the Loan Agreement may be amended or modified pursuant to an
agreement of agreements in writing among only the Company and the Agent only for
the purpose of clarifying such form of Weekly Report or form of Monthly
Settlement Statement, as the case may be, or more fully conforming such form of
Weekly Report or Monthly Settlement Statement to the purposes thereof as set
forth in this Agreement.
SECTION 4.05 Waiver of Jury Trial. EACH PARTY HERETO HEREBY 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 OR ANY OF THE OTHER TRANSACTION
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 4.05.
18
SECTION 4.06 Severability. In the event any one or more of the
provisions contained in or obligation under this Agreement or in or under any
other Transaction Document should be held invalid, illegal or unenforceable 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 4.07 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 an
executed counterpart of a signature page to this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Agreement.
SECTION 4.08 No Recourse. Each party hereto agrees that no recourse
with respect to any obligation, covenant or agreement of the Servicer or the
Company contained in this Agreement or any other Transaction Document to which
the Company or the Servicer is a party shall be had against any shareholder of
the Company or any affiliate of such shareholder, or any officer, director or
employee of any such Person (each such person a "Protected Party") by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood that this
Agreement and each other Transaction Document to which the Company is a party is
solely an obligation of the Company and that no personal liability whatever
shall attach to or be incurred by any Protected Party under or by reason of any
of the obligations, covenants or agreements of the Company contained in this
Agreement or any other Transaction Document to which the Company is a party, or
implied therefrom; and it being further expressly agreed and understood that any
and all personal liability for breaches by the Company of any of such
obligations, covenants or agreements, either at common law or at equity or by
statute or constitution or otherwise, of every Protected Party is hereby
expressly waived.
SECTION 4.09 Consent to Jurisdiction. EACH OF THE PARTIES HERETO
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, ANY COURT IN THE STATE OF
NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH SUIT OR ACTION OR
PROCEEDING MAY BE HEARD OR DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO ASSERT BY
WAY OF MOTION, AS A
19
DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT
IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE
SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR ANY OF THE
OTHER TRANSACTION DOCUMENTS OR THE SUBJECT MATTER HEREOF MAY NOT BE LITIGATED IN
OR BY SUCH COURTS. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION, SUIT 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.
SECTION 4.10 Bankruptcy Petition Against the Company. The Servicer
hereby covenants and agrees that, prior to the date which is one year and one
day after the payment in full of all outstanding Obligations, it will not
institute against, or join any other Person in instituting against, the Company
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United States or
any state of the United States. In the event that the Servicer takes action in
violation of this Section 4.10, the Company agrees, for the benefit of the
holders of the Obligations, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such a petition or the
commencement of such action and raise the defense that the Servicer has agreed
in writing not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as its counsel advises that it may
assert. The provisions of this Section 4.10 shall survive the termination of
this Agreement.
SECTION 4.11 No Recourse. Without limitation to the obligations of the
Company hereunder, no recourse shall be had for the payment of any amount owing
in respect of Servicer Advances against any stockholder, employee, officer,
director or incorporator of the Company based solely on their status as such.
The provisions of this Section 4.11 shall survive the termination of this
Agreement and the replacement of the Servicer.
SECTION 4.12 Attorney-in-Fact. The Company appoints the Servicer as the
Company's attorney-in-fact, with full authority in the place and stead of the
Company and in the name of the Company or otherwise (but subject to revocation
by the Company at any time), to ask, demand, collect, ▇▇▇ for, recover and
receipt for moneys due and to become due under or in connection with the
Collateral; and to file any claims or take any action or institute any
proceedings that the Servicer deem to be necessary or desirable for the
collection of the Receivables, in each case in accordance with (and subject to
the limitations of) the Transaction Documents.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
B.I. FUNDING, INC.
By: /s/▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
BURLINGTON INDUSTRIES, INC., as
Servicer
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Treasurer
and Investor Relations
WACHOVIA BANK, N.A., as
Agent and Collateral Agent
By: /s/ W.E. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Schedule 2.03(c)
Consent or Approvals
Approval of the Boards of Directors of Burlington Industries, Inc. and
B.I. Funding, Inc.