RECEIVABLE TRANSFER AGREEMENT
RECEIVABLES TRANSFER AGREEMENT, dated as of May 12, 2000, between GREAT
AMERICAN KNITTING XXXXX, INC., a Delaware corporation (in its capacity as
originator of the Receivables and as the seller hereunder, the "Company"; in its
capacity as servicer hereunder, the "Servicer"), and XXXXXX AMERICAN
RECEIVABLES, LLC, a Delaware limited liability company, as purchaser (the
"Purchaser").
W I T N E S S E T H :
WHEREAS, in the ordinary course of business, the Company generates accounts
receivable; WHEREAS, the Company desires to sell to the Purchaser and the
Purchaser desires to purchase from the Company on the First Purchase Date, and
the Purchaser may purchase from the Company and the Company may sell to the
Purchaser, at the Purchaser's option, on the Second Purchase Date (each, a
"Purchase Date"), all of the Company's right, title and interest in, to and
under the Receivables identified in the Assignment dated such Purchase Date, and
in the rights of the Company in, to and under all Related Security with respect
thereto;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
DEFINITIONS
Defined Terms. i) Capitalized terms used in this Agreement shall have the
respective meanings assigned to such terms in the Receivables Purchase Agreement
unless otherwise defined herein.
(a) The following capitalized terms shall have the following meanings:
"Affiliate" means with respect to any specified Person, any other Person
(i) which directly or indirectly controls, or whose directors or officers
directly or indirectly control, or is controlled by, or is under common control
with, such specified Person, (ii) which beneficially owns or holds, or whose
directors or officers beneficially own or hold, five percent (5%) or more, of
any class of the voting stock (or, in the case of an entity that is not a
corporation, five percent (5%) or more of the equity interest) of such specified
Person, or (iii) five percent (5%) or more of the voting stock (or, in the case
of an entity that is not a corporation, five percent (5%) or more of the equity
interest) of which is owned or held by such specified Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise. In addition, (i) each
department, branch, agency or instrumentality of the United States government
shall be deemed to be an Affiliate of the United States government, and (ii)
each department, branch, agency or instrumentality of a state government shall
be deemed to be an Affiliate of such state government.
"Assignment" shall mean an assignment in the form of Exhibit A hereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with the Company within the meaning
of Section 4001 of ERISA or is part of a group which includes the Company and
which is treated as a single employer under Section 414 of the Code.
"Company Person" shall mean the Company and each of its Affiliates other
than the Purchaser.
"Company Repurchase Payment" shall have the meaning specified in Section
2.6.
"Credit and Collection Policy" means, collectively, those credit and
collection policies and practices of the Company and the Servicer with respect
to the Receivables as in effect on the First Purchase Date.
"Cutoff Date" shall mean, with respect to any Purchased Receivables, the
date identified as such in the related Assignment.
"Defaulted Receivable" means any Receivable (i) with respect to which any
payment (or any portion thereof) remains unpaid for more than ninety (90) days
past the original due date, (ii) the Obligor of which is subject to a bankruptcy
or insolvency proceeding, or (iii) which has been written off or should be
written off in accordance with the Credit and Collection Policy.
"Documents" means this Agreement, the Receivables Purchase Agreement, the
certificate of formation of the Purchaser, the limited liability company
agreement of the Purchaser, and any other instrument, surety bond, insurance
policy, surety bond reimbursement agreement, insurance policy reimbursement
agreement, UCC financing statement, notice, certificate, report, agreement or
document delivered in connection herewith or therewith.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Face Amount" shall mean, with respect to any Receivable, the dollar amount
thereof as shown on the applicable Assignment.
"First Purchase Date" shall mean May 12, 2000, or such subsequent date as
shall be mutually agreed.
"Governmental Authority" shall mean the federal government of the United
States, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indemnification Amounts" shall have the meaning set forth in Section
6.2(a).
"Insolvency" or "Insolvent" shall mean, with respect to any Multiemployer
Plan, the condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Lien" shall mean any ownership or security interest, lien, charge, pledge,
participation, mortgage or encumbrance of any kind.
"LLC Agreement" means the limited liability company agreement of the
Purchaser, as the same may be amended, restated or otherwise modified from time
to time.
"Material Adverse Effect" shall mean a material adverse effect on (i) the
validity or enforceability of this Agreement, (ii) the ability of the Company to
perform its obligations under this Agreement or (iii) the value, enforceability
or collectibility of any Purchased Receivables.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA and covered by Title IV thereof, and to which the Company or
any Commonly Controlled Entity contributes or was obligated to contribute in the
immediately preceding five years.
"Obligor" with respect to any Purchased Receivable means the Person
identified on the schedule to the related Assignment as obligated to make
payment of such Purchased Receivable.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Lien" shall mean any Lien for municipal or other local taxes if
such taxes shall not at the time be due and payable or if the Company shall
currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with respect
thereto.
"Plan" shall mean, at a particular time, any employee benefit plan within
the meaning of Section 3(3) of ERISA which is subject to ERISA and in respect of
which the Company or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Purchase Date" shall have the meaning given to it in the recitals hereto.
"Purchase Price" shall mean, with respect to (a) the Initial Receivables,
$6,286,414.03, and (b) the Subsequent Receivables, (i) the Face Amount of such
Receivables as of the related Cutoff Date less (ii) the product of (A) the Prime
Rate in effect as of the Second Purchase Date, (B) the Face Amount of such
Receivables and (C) 55 divided by 360, plus (iii) the product of 0.20% and the
Face Amount of such Receivables.
"Purchased Receivable" shall mean any Receivable sold to the Purchaser by
the Company pursuant to, and in accordance with the terms of, this Agreement and
not resold to the Company pursuant to Section 2.6 or 2.7.
"Receivables" shall mean amounts due to the Company, whether constituting
an account, chattel paper, instrument, or general intangible, arising in
connection with the sale of socks.
"Receivables Purchase Agreement" means the Receivables Purchase Agreement
among the Purchaser, the Servicer and the Unaffiliated Buyer, as the same may be
amended, restated or otherwise modified from time to time.
"Records" means, with respect to any Receivable, all documents, books,
records and other information (including, without limitation, computer programs,
tapes, discs, punch cards, data processing software and related property and
rights) relating to such Receivable or the related Obligor.
"Related Security" shall mean, with respect to each Receivable, (i) all
security interests or liens and property from time to time purporting to secure
payment of such Receivable, together with all financing statements signed by an
Obligor describing any collateral securing such Receivable, and (ii) all
guarantees, insurance and other arrangements of whatever character from time to
time supporting or securing payment of such Receivable.
"Reorganization" shall mean, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. '
2615.
"Requirements of Law" for any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to or binding upon
such Person or to which such Person is subject, whether federal, state or local
(including, without limitation, usury laws, and Regulation Z and Regulation B of
the Board of Governors of the Federal Reserve System).
"Second Purchase Date" shall mean the date, if any, on which the Purchaser
shall make a second purchase of Receivables hereunder, such date being mutually
agreed between the Company and the Seller.
"Servicing Documents" shall have the meaning set forth in subsection
2.10(c).
"Single Employer Plan" shall mean any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent" shall mean, when used with respect to any Person, as of any date
of determination, (a) the amount of the "present fair saleable value" of the
assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"Subsidiary" means, as to any Person, (i) any corporation more than fifty
percent (50%) of whose stock having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person and/or one or more
Subsidiaries of such Person and (ii) any partnership, limited liability company,
association, joint venture or other entity in which such Person and/or one or
more Subsidiaries of such Person has more than fifty percent (50%) equity
interest at the time.
"Unaffiliated Buyer" shall mean Banc of America Commercial Corporation.
Other Definitional Provisions. (a) The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, "including" means including without limitation and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Company and the
Purchaser, unless otherwise defined herein, shall have the respective meanings
given to them under generally accepted accounting principles.
(c) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
PURCHASE AND SALE OF RECEIVABLES
1.1. Purchase and Sale of Receivables. (a) Subject to the terms and conditions
of this Agreement, the Company shall sell, assign, transfer and convey to
the Purchaser, and the Purchaser shall purchase from the Company, on the
First Purchase Date but as of the related Cutoff Date, all of the Company's
right, title and interest, in, to and under (i) the Receivables identified
in the applicable Assignment delivered pursuant to Subsection 3.2(a) (the
"Initial Receivables") and all payment and enforcement rights (but none of
the obligations) with respect to such Initial Receivables, (ii) all Related
Security with respect to such Initial Receivables and (iii) all proceeds
(including, without limitation, "proceeds" as defined in Section 9-306 of
the UCC as in effect in the State of New York) of, and any and all amounts
received or receivable under, any or all of the foregoing.
(b) Subject to the terms and conditions of this Agreement, the Company may,
if so requested by the Purchaser, sell, assign, transfer and convey to the
Purchaser, and the Purchaser shall purchase from the Company, on the Second
Purchase Date but as of the related Cutoff Date, all of the Company's right,
title and interest, in, to and under (i) the Receivables identified in the
applicable Assignment delivered pursuant to Subsection 3.2(a) (the "Subsequent
Receivables") and all payment and enforcement rights (but none of the
obligations) with respect to such Subsequent Receivables, (ii) all Related
Security with respect to such Subsequent Receivables and (iii) all proceeds
(including, without limitation, "proceeds" as defined in Section 9-306 of the
UCC as in effect in the State of New York) of, and any and all amounts received
or receivable under, any or all of the foregoing.
(c) The sale of Receivables and Related Security by the Company hereunder
shall be without recourse to, or representation or warranty of any kind (express
or implied) by, the Company, except as otherwise specifically provided herein.
The foregoing sale, assignment, transfer and conveyance does not constitute and
is not intended to result in a creation or assumption by the Purchaser of any
obligation of the Company or any other Person in connection with the
Receivables, the Related Security or any other agreement or instrument relating
thereto, including any obligation to any Obligor.
(d) In connection with the foregoing conveyances, the Company agrees to
record and file on or prior to the related Purchase Date, at its own expense,
UCC-1 financing statements (and thereafter continuation statements with respect
to such financing statements when applicable) with respect to the Receivables
and the Related Security to be purchased on such Purchase Date, from the
Company, meeting the requirements of applicable state law in such manner and in
such offices as are necessary or as the Purchaser may reasonably request to
perfect or protect the purchases of such Receivables and the Related Security by
the Purchaser from the Company, to obtain oral confirmation of such filing on or
prior to the related Purchase Date and to deliver file-stamped copies of such
financing statements or other evidence of such filings within five Business Days
after the related Purchase Date.
(e) In connection with the foregoing conveyances, the Company agrees at its
own expense to indicate on its computer files relating to the Purchased
Receivables that the Purchased Receivables and the Related Security have been
sold to the Purchaser in accordance with this Agreement.
(f) It is the express intent of the Company and the Purchaser that the
conveyance of the Purchased Receivables and the Related Security by the Company
to the Purchaser pursuant to this Agreement be construed as a sale of the
Purchased Receivables and the Related Security by the Company to the Purchaser.
It is, further, not the intention of the Company and the Purchaser that such
conveyance be deemed a grant of a security interest in the Purchased Receivables
and the Related Security by the Company to the Purchaser to secure a debt or
other obligation of the Company. However, in the event that the conveyance of
the Purchased Receivables and Related Security hereunder is characterized by a
court or other Governmental Authority as a loan rather than a sale, the Company
shall be deemed hereunder to have granted to the Purchaser, and the Company
hereby grants to the Purchaser, a security interest in all of the Company's
right, title and interest in, to and under all of the items set forth in
subsections 2.1(a)(i) through (iii) above, whether now or hereafter owned,
existing or arising and wherever located. The Purchaser shall have, with respect
to the property described in this subsection 2.1(f), and in addition to all the
other rights and remedies available to the Purchaser under this Agreement and
applicable law, any additional rights and remedies of a secured party under any
applicable UCC.
(g) In consideration of the Purchaser's purchase of the Purchased
Receivables, the Company hereby acknowledges and agrees that the Purchaser
intends to sell such Receivables and Related Security to the Unaffiliated Buyer,
and the Company agrees to cooperate fully with the Unaffiliated Buyer in the
exercise of the rights attendant thereto.
(h) In no event shall the Purchaser be obligated to purchase, or shall the
Company be obligated to sell, Receivables having an aggregate Face Amount in
excess of $24,000,000.
1.2. Purchase Price. On each Purchase Date, the Purchaser shall pay to the
Company, in consideration of the sale hereunder, in immediately available
funds, the related Purchase Price. Such Purchase Price shall be
non-refundable.
1.3. Payment of Purchase Price.
(a) Upon the fulfillment of the applicable conditions set forth in Article
III, except as provided in subsection 2.3(b) below, the Purchase Price for
Receivables and the Related Security shall be due and payable on the related
Purchase Date. The Purchase Price shall be paid or provided for on each related
Purchase Date in the manner provided in subsections (b) and (c) below.
(b) The Purchase Price for the Receivables and the Related Security with
respect thereto shall be due and payable on the related Purchase Date and shall
be paid by the Purchaser in cash from amounts distributed to the Purchaser
pursuant to the Receivables Purchase Agreement or from amounts otherwise
available to the Purchaser.
(c) Whenever any payment to be made under this Agreement shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day. Amounts not paid when due shall bear interest at a
rate equal at all times to 9%, payable on demand.
1.4. No Repurchase. Except to the extent expressly set forth herein, the Company
shall not have any right or obligation under this Agreement, by implication
or otherwise, to repurchase from the Purchaser any Purchased Receivables or
Related Security or to rescind or otherwise retroactively affect the
purchase of any Purchased Receivables or Related Security. Adjustments.
Without the Purchaser's prior written consent, the Company will not vary
the terms (including, but not limited to, amount, maturity and the like)
on, or grant any adjustment, refund or other indulgence with respect to,
any Purchased Receivable. The Company shall promptly notify the Purchaser
upon accepting returns or granting allowances under the terms of any
Purchased Receivable. The Purchaser agrees to use good faith efforts (but
shall have no obligation) to cooperate and assist the Company in the
adjustment of any Customer Dispute.
1.5. Limited Repurchase Obligation. If (i) any of the representations or
warranties contained in Section 4.2 in respect of any Purchased Receivable
is not true and correct in any material respect as of the date made
hereunder or (ii) the Company shall have breached the covenant contained in
Section 5.2 with respect to any Purchased Receivable, then, after the
earlier to occur of the discovery of such event by the Company or notice of
such event by the Purchaser to the Company, the Company shall repurchase
such Receivable on the terms and conditions set forth in this Section 2.6.
The Company shall repurchase such Receivable by paying to the Purchaser (a
"Company Repurchase Payment") an amount equal to the Face Amount of such
Receivable (whether the Purchaser paid the Purchase Price of such
Receivable in cash or otherwise), such payment to occur on the Business Day
after the day on which such repurchase obligation arises. The obligation to
repurchase any Purchased Receivable shall constitute the sole remedy with
respect to the sale of Purchased Receivables hereunder respecting an event
of the type specified above available to the Purchaser. Simultaneously with
any Company Repurchase Payment with respect to any Purchased Receivable,
such Receivable and the Related Security with respect thereto shall
immediately and automatically be sold, assigned, transferred and conveyed
by the Purchaser to the Company, without recourse, representation or
warranty, without any further action by the Purchaser or any other Person.
1.6. Purchase of Receivables. (a) In the event of any breach of any of the
representations and warranties set forth in Section 4.1, which breach has a
Material Adverse Effect on the interests of the Purchaser in the Purchased
Receivables, then the Purchaser by notice to the Company, may direct the
Company to purchase all outstanding Purchased Receivables and the Company
shall be obligated to make such purchase on the Business Day which is five
(5) Business Days after the date of such notice on the terms and conditions
set forth below; provided, however, that no such purchase shall be required
to be made if, by such date of repurchase, such breach has been remedied in
all material respects and any Material Adverse Effect on the interests of
the Purchaser in the Purchased Receivables caused thereby has been cured.
(b) The Company shall pay to the Purchaser, on the Business Day preceding
such date of repurchase, an amount equal to the aggregate Face Amount of
the Purchased Receivables as of such date. Upon payment of such amount, in
immediately available funds, to the Purchaser, the Purchaser's rights with
respect to the Purchased Receivables shall terminate and such interest
therein shall be transferred to the Company and the Purchaser shall have no
further rights with respect thereto. If the Purchaser gives notice
directing the Company to purchase the Purchased Receivables as provided
above, the obligation of the Company to purchase the Purchased Receivables
pursuant to this Section 2.7 shall constitute the sole remedy with respect
to the sale of Purchased Receivables hereunder respecting an event of the
type specified in the first sentence of this Section 2.7 available to the
Purchaser.
1.7. Certain Charges. The Company and the Purchaser agree that late charge
revenue, reversals of discounts, other fees and charges and other similar
items, whenever created or accrued in respect of Purchased Receivables
shall be the property of the Purchaser and all Collections with respect
thereto shall continue to be allocated and treated as Collections in
respect of Purchased Receivables.
1.8. Certain Allocations. The Company agrees that, in the event that the Company
cannot identify a particular Collection to a specific Receivable, all cash
collections and other proceeds received with respect to the Obligor on such
Receivable that are not so identified to a Purchased Receivable or a
Receivable not sold to the Purchaser shall be applied first, to pay the
outstanding Face Amount of Purchased Receivables of such Obligor until such
Purchased Receivables are paid in full and second, amounts in excess
thereof shall be paid to the Company to pay Receivables of such Obligor not
sold to the Purchaser.
1.9. Further Action. The Company agrees that:
(a) Following the occurrence and during the continuance of a default by the
Servicer in the performance of its obligations under Section 5.3, the Purchaser
shall have the right to require that the Company, at the Company's expense,
notify the Obligors of the Purchaser's ownership of the Purchased Receivables;
(b) The Purchaser shall have the right to (i) xxx for collection on, and
exercise any and all remedies with respect to, any Purchased Receivables, (ii)
sell any Purchased Receivables to any Person for a price that is acceptable to
the Purchaser or (iii) otherwise freely exercise all rights of ownership of the
Purchased Receivables, in each case without any consent of or notice to the
Company;
(c) Upon the occurrence of any transfer of servicing pursuant to the
Receivables Purchase Agreement, the Company shall, upon the Purchaser's request
and at the Company's expense, (i) assemble all the Company's documents,
instruments and other records (including credit files and computer tapes or
disks) that (A) evidence or will evidence or record Receivables sold by the
Company and (B) are otherwise necessary or reasonably determined by the
Purchaser to be useful to effect Collections of such Purchased Receivables
(collectively, the "Servicing Documents"), (ii) deliver the Servicing Documents
to the Purchaser or its designee at a place designated by the Purchaser, (iii)
deliver to the Purchaser or its designee all computer programs and related
material necessary or reasonably determined by the Purchaser to be useful to the
immediate collection of the Purchased Receivables by the Purchaser, with or
without the participation of the Company, and (iv) make such arrangements with
respect to the collection of the Purchased Receivables as may be reasonably
required by the Purchaser. In recognition of the Company's need to have access
to any Servicing Documents which may be transferred to the Purchaser hereunder,
as a result of its continuing business relationship with the Obligors, the
Purchaser hereby grants to the Company a license to access the Servicing
Documents transferred by the Company to the Purchaser and to access any such
transferred computer software in connection with any activity arising in the
ordinary course of the Company's business, provided that the Company shall not
disrupt or otherwise interfere with the Purchaser's use of and access to the
Servicing Documents and its computer software during such license period;
(d) The Company hereby irrevocably authorizes the Purchaser or its designee
to take any and all steps in the Company's name necessary, in the reasonable
opinion of the Purchaser, to collect, in a timely manner, all amounts due under
the Purchased Receivables, including endorsing the Company's name on checks and
other instruments representing Collections, enforcing the Purchased Receivables
and exercising all rights and remedies in respect thereof; and
(e) On or prior to the First Purchase Date, the Company shall have taken
all reasonably necessary steps to cause the Purchaser to be satisfied with the
Purchaser's ability to use any computer programs, tapes, disks, cassettes and
data necessary or advisable to permit the timely collection of the Purchased
Receivables by a servicer without the participation of the Company.
1.10.Further Assurances by Purchaser. From time to time at the request and at
the expense of the Company, the Purchaser shall deliver to the Company such
documents, assignments, releases and instruments of termination as the
Company may reasonably request to evidence the reconveyance by the
Purchaser to the Company of a Purchased Receivable pursuant to the terms of
Section 2.5, provided that, the Purchaser shall have been paid all amounts
due hereunder.
CONDITIONS TO PURCHASE AND SALE
1.11.Conditions Precedent to the First Purchase of Receivables. The obligation
of the Purchaser to purchase Receivables and Related Security hereunder on
the First Purchase Date from the Company is subject to the conditions
precedent that (a) each of this Agreement and the Receivables Purchase
Agreement shall be in full force and effect and (b) the conditions set
forth below shall have been satisfied on or before the First Purchase Date:
(i) the Purchaser shall have received copies of duly adopted resolutions of
the Board of Directors of the Company as in effect on the First Purchase
Date and in form and substance reasonably satisfactory to the Purchaser,
authorizing the execution, delivery and performance of this Agreement, the
Assignments, the other documents to be delivered by the Company hereunder
and the transactions contemplated hereby, certified by the Secretary or
Assistant Secretary of the Company; (ii) the Purchaser shall have received
duly executed certificates of the Secretary or an Assistant Secretary of
the Company, dated the date hereof, and in form and substance reasonably
satisfactory to the Purchaser, certifying the names and true signatures of
the officers authorized on behalf of the Company to sign this Agreement,
the Assignments and any other instruments or documents to be delivered in
connection with this Agreement; and (iii) the Purchaser shall have received
evidence reasonably satisfactory to the Purchaser that the Company shall
have obtained all consents required in connection with the sale of the
related Receivables contemplated hereby.
1.12.Conditions Precedent to each Purchase of Receivables. The obligation of the
Purchaser to purchase Receivables and Related Security hereunder on any
Purchase Date from the Company is subject to the fulfillment on or before
such Purchase Date of the following conditions precedent (i) the Purchaser
shall have received a duly executed Assignment setting forth the Obligors
and Face Amount of the Receivables to be purchased hereunder on such
Purchase Date; (ii) all corporate and other legal matters incident to the
execution and delivery of this Agreement and to the purchases by the
Purchaser of the related Receivables on the related Purchase Date from the
Company shall be reasonably satisfactory to counsel for the Purchaser; and
(iii)the representations and warranties of the Company contained in
Sections 4.1 and 4.2 shall be true and correct in all material respects on
and as of such Purchase Date as though made on and as of such date, except
insofar as such representations and warranties are expressly made only as
of another date.
REPRESENTATIONS AND WARRANTIES
1.13.Representations and Warranties of the Company Relating to the Company. The
Company hereby represents and warrants to the Purchaser on each Purchase
Date that:
(a) Organization and Good Standing. The Company is duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
full corporate power, authority and the legal right to own and operate its
properties, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, and to execute, deliver and perform
its obligations under this Agreement and to sell the related Receivables and the
Related Security hereunder;
(b) Due Qualification. The Company is duly qualified to do business and is
in good standing as a foreign corporation (or is exempt from such requirements)
and has obtained all necessary licenses and approvals in each jurisdiction in
which the conduct of its business requires such qualification except where the
failure to so qualify or obtain licenses or approvals would not have a Material
Adverse Effect;
Due Authorization. The execution and delivery of this Agreement and the
Assignments and the consummation of the transactions provided for herein have
been duly authorized by all necessary corporate action on the part of the
Company;
(c) Binding Obligation. Each of this Agreement and the Assignments, when
executed and delivered hereunder, constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws now or hereinafter in effect affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in equity);
(d) No Violation or Conflict. The execution and delivery of this Agreement
and the Assignments by the Company, the performance of the transactions
contemplated hereby and the fulfillment of the terms hereof applicable to the
Company will not conflict with, violate, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a default under, any Requirement of Law applicable to the Company or
any indenture, contract, agreement, mortgage, deed of trust, or other instrument
to which the Company or its parent or any of its Subsidiaries is a party or by
which any such Person or its properties are bound;
(e) Compliance with Requirements of Law. The Company is in compliance in
all material respects with all Requirements of Law, except to the extent that
the failure to comply therewith would not have a Material Adverse Effect;
(f) No Proceedings. There are no proceedings or investigations pending or,
to the best knowledge of the Company, threatened, against the Company before any
court or Governmental Authority (i) asserting the invalidity of this Agreement
or any Assignment, (ii) seeking to prevent the sale of any Receivables or the
Related Security hereunder or (iii) seeking any determination or ruling that
would materially and adversely affect the performance by the Company of its
obligations under this Agreement;
(g) Taxes. No tax Lien has been filed against the Company. Each of the
statements in this sentence is true, except to the extent that the potential
liability to the Company as a result of the circumstances causing any such
statement to be untrue would not have a Material Adverse Effect: it has filed or
caused to be filed all tax returns which are required to be filed and has paid
all taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority and, to the
best knowledge of the Company, no claim is being asserted with respect to any
such taxes, fees or other charges (other than with respect to Permitted Liens);
(h) Solvency. The Company is, and the Company and its Subsidiaries taken as
a whole are, and in each case after giving effect to the transactions
contemplated to occur on or prior to any Purchase Date will be, Solvent and no
sale of Receivables hereunder is made with the intent to hinder, delay or
defraud any creditor of the Company or its parent or any of its Subsidiaries;
(i) ERISA. Each of the following statements is true, except where the
amount involved in any untrue statement, either individually or in the
aggregate, would not have a Material Adverse Effect: Neither a Reportable Event,
an "accumulated funding deficiency" (within the meaning of Section 412 of the
Code or Section 302 of ERISA) nor a failure to make a required contribution as
described in Section 412(n) of the Code has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Plan, and each Plan has complied in all material respects with
the applicable provisions of ERISA and the Code. No termination of a Single
Employer Plan has occurred, no steps have been taken to institute the
termination of any Plan and no Lien in favor of the PBGC or a Plan has arisen
during such five-year period, and no Lien exists in favor of the PBGC. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits. Neither it nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan, and neither it nor any Commonly
Controlled Entity would become subject to any liability under ERISA if it or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made. To its best knowledge, no such
Multiemployer Plan is in Reorganization or Insolvent. The present value
(determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of it and each Commonly Controlled Entity for post-retirement benefits
to be provided to their current and former employees under Plans which are
welfare benefit plans (as defined in Section 3(1) of ERISA) does not, in the
aggregate, exceed the assets under all such Plans allocable to such benefits by
an amount which would be reasonably likely to result in a liability having a
Material Adverse Effect;
(j) Location of Chief Executive Office. The chief executive office of the
Company is located in Burlington, North Carolina, which office is the place
where the Company is "located" for the purposes of Section 9-103(3)(d) of the
UCC of the State of New York and the office of the Company where the Company
keeps its records concerning the Receivables;
(k) Taxpayer Identification Number. The Internal Revenue Service taxpayer
identification number of the Company is 00-0000000; and
(m) No agreement, document, instrument, certificate, report, statement or
other document or information furnished to the Purchaser in connection herewith
or with the consummation of the transactions contemplated hereby, contains any
material misstatement of fact or omits to state a material fact or any fact
necessary to make statements contained herein or therein not misleading in light
of the circumstances under which they were made.
1.14.Representations and Warranties of the Company Relating to the Receivables.
The Company hereby represents and warrants to the Purchaser on each
Purchase Date with respect to each Receivable purchased by the Purchaser on
such date, that as of the related Cutoff Date:
(a) The Company is the sole legal and beneficial owner of and has all
right, title and interest in and to such Receivable and any Related Security,
and upon the sale of such Receivable and Related Security to the Purchaser, the
Purchaser will become the sole legal and beneficial owner of such Purchased
Receivable and Related Security, free and clear of any Liens (other than
Permitted Liens), and no effective financing statement or other instrument
similar in effect covering all or any part of such Purchased Receivable, the
Related Security or Collections with respect thereto will at such time be on
file against the Company in any filing or recording office except such as have
been filed in favor of the Purchaser in accordance with this Agreement or in
favor of the Unaffiliated Buyer in accordance with the Receivables Purchase
Agreement;
(b) Such Receivable has been designated by the Unaffiliated Buyer in
writing as an Approved Receivable, the Face Amount thereof is the dollar amount
thereof shown on the books and records of the Company, and such Receivable is
not a Defaulted Receivable;
(c) All consents, licenses, approvals, orders or other actions of any
Person or any Governmental Authority required to be obtained, effected or given
by the Company in connection with the sale of such Receivable and Related
Security to the Purchaser have been duly obtained, effected or given and are in
full force and effect;
(d) The Obligor on such Receivable is not an Affiliate or in any other way
related to the Company, its parent or any of its Subsidiaries;
(e) Such Receivable, together with the sale of goods out of which such
Receivable arises, (i) complies with all applicable Requirements of Law, (ii)
constitutes a valid and binding unconditional obligation of the Obligor to pay
the Face Amount of such Receivable and is not subject to any defense, set-off or
counterclaim, (iii) is based on an actual and bona fide sale and delivery in the
ordinary course of business of goods that have been delivered to and accepted by
such Obligor, (iv) provides for payment by such Obligor in U.S. Dollars, (v) is
not past its due date, (vi) is not subject to any Lien, (vii) does not include
any amount as to which such Obligor is permitted to withhold payment until the
occurrence of a specified event or condition (including but not limited to
"guaranteed" or "conditional" sales), unless such Obligor has acknowledged in
writing that such specified event or condition has occurred ans such amount is
owing, (viii) is not the subject of any legal or arbitral proceeding, (ix) is
not disputed and (x) is not subject to the Federal Assignment for Claims Act of
1940 or any other transfer restriction; and
(f) The Company has not waived any of its rights with respect to such
Receivable or taken or omitted to take any action which action or omission may
reduce or impair the rights that the Purchaser would otherwise have with respect
to such Receivable.
COVENANTS
1.15.Affirmative Covenants of the Company. The Company hereby agrees that, so
long as there are any amounts outstanding with respect to Purchased
Receivables, the Company shall:
(a) Compliance with Requirements of Law. Duly satisfy all obligations on
its part to be fulfilled under or in connection with the Receivables and comply
with all Requirements of Law applicable to the Receivables the failure to
satisfy or to comply with which would have a Material Adverse Effect.
(b) Keeping of Records. Retain copies of the Records as custodian and agent
for the Purchaser and other Persons with interests in the Purchased Receivables
and at its own expense indicate on its computer files relating to the Purchased
Receivables that the Purchased Receivables have been sold to the Purchaser in
accordance with this Agreement.
(c) Credit and Collection Policy. Comply in all material respects with its
Credit and Collection Policy in regard to the Purchased Receivables.
(d) Inspection of Property; Discussions. At any time and from time to time
during the Company's regular business hours, on reasonable advance notice,
permit the Purchaser or the agents or representatives of the Purchaser to visit
the offices of the Company in order (i) to examine and make abstracts from any
of the Records and (ii) to discuss matters relating to the Receivables and the
Company's performance hereunder with officers and employees of the Company
having knowledge of such matters.
(e) Corporate Existence. Maintain its corporate existence in the
jurisdiction of its incorporation, and qualify and remain qualified as a foreign
corporation in each jurisdiction where it does business, except where the
failure to maintain such existence and qualifications would not have a Material
Adverse Effect.
(f ) Notices. Furnish to the Purchaser:
(i) promptly upon determining that any representation or warranty made by
the Company hereunder was incorrect or the Company has failed to
comply with any of the agreements or provisions hereof applicable to
it, written notice of such determination;
(ii) promptly after becoming aware of any Lien on any Purchased Receivable;
(iii)promptly if any failure to make a contribution occurs that could
constitute an accumulated funding deficiency or could give rise to a
Lien under Section 412 of the Code or Section 302 of ERISA;
(iv) promptly upon the institution of any steps by any Person to
terminate a Plan;
(v) promptly upon the occurrence of a Reportable Event; and
(vi) promptly upon the institution of any steps by the Company or
any Commonly Controlled Entity to make a complete or partial
withdrawal from a Multiemployer Plan.
(g) Further Action. At its expense, promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or, in the reasonable opinion of the Purchaser, desirable in
order to fully effect the purposes of this Agreement and to perfect,
protect or more fully evidence the Purchaser's right, title and interest in
the Purchased Receivables and the Related Security, or to enable the
Purchaser to exercise or enforce any of its rights in respect thereof.
Without limiting the generality of the foregoing, the Company will execute
and file such financing or continuation statements relating to the
Receivables and the Related Security for filing under the provisions of the
UCC, or amendments thereto, and such other instruments or notices, as may
be necessary or, in the reasonable opinion of the Purchaser, desirable. The
Company hereby irrevocably authorizes the Purchaser to file one or more
financing or continuation statements, and amendments thereto, relating to
all or any part of the Purchased Receivables sold or to be sold and the
Related Security without the signature of the Company.
1.16.Negative Covenants of the Company. The Company hereby agrees that, so long
as there are any amounts outstanding with respect to Purchased Receivables,
it shall not, directly or indirectly:
(a) Liens. Except as otherwise herein provided, sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on, any Receivable or the Related Security, whether now existing or
hereafter created, with respect thereto, and the Company shall defend the right,
title and interest of the Purchaser in, to and under any Purchased Receivable
and the Related Security, whether now existing or hereafter created, against all
claims of third parties claiming through or under the Company; provided, that
nothing in this paragraph (a) shall prevent or be deemed to prohibit the Company
from suffering to exist upon any of the Receivables any Permitted Liens.
(b) Extension or Amendment of Receivables. Extend, rescind, cancel, amend
or otherwise modify, or attempt or purport to extend, amend or otherwise modify,
the terms of any Purchased Receivables (including, without limitation, extending
the due dates thereof or impairing the collectibility thereof); provided,
however, that the Company, as Servicer under the Receivables Purchase Agreement,
may do so in accordance with the terms of the Credit and Collection Policy or as
required by any Requirement of Law.
(c) Change in Name. Change (i) its name or identity in any manner or (ii)
its corporate structure in any manner that would or might make any financing
statement or continuation statement relating to this Agreement seriously
misleading within the meaning of Section 9-402(7) of the UCC in effect in the
relevant jurisdiction, in each case without 20 days' prior written notice to the
Purchaser.
(d) Location of Records. Move the location of its chief executive office or
the location of the office where it keeps its records with respect to the
Receivables outside of Alamance County, North Carolina, without 20 days' prior
written notice to the Purchaser, and the Company shall promptly take all actions
reasonably required (including but not limited to all filings and other acts
necessary or advisable under the UCC of each relevant jurisdiction) in order to
protect the Purchaser's interest in the Purchased Receivables. The Company shall
give the Purchaser prompt notice of a change of the location of its chief
executive office or any office where it keeps its records with respect to the
Receivables within the city or county where such office is located.
(e) Accounting of Purchases. Prepare any financial statements which shall
account for the transactions contemplated hereby in any manner other than as
sales of the Purchased Receivables by the Company to the Purchaser or account
for or treat the transactions contemplated hereby for accounting purposes and,
where taxes are not consolidated, for tax reporting purposes, except as required
by law, in any manner other than as sales of the Purchased Receivables by the
Company to the Purchaser.
(f) Chattel Paper. Take any action to cause any Receivable to be evidenced
by any instrument or chattel paper (each as defined in the UCC as in effect in
the State of New York) except in connection with its enforcement or collection
of a Receivable.
(g) Credit and Collection Policy. Make any change or modification to the
Credit and Collection Policy that could reasonably be expected to have an
adverse effect on the interests of the Purchaser in the Purchased Receivables or
the Related Security.
(h) Separate Existence of Purchaser. Violate or interfere with the
Purchaser's compliance with clauses 1 through 14 of subsection 9(j)(iv) of the
LLC Agreement.
1.17.Covenants of the Servicer. The Servicer hereby agrees to collect and
service (including the remittance of collections on the Purchased
Receivables) the Purchased Receivables in accordance with Section 4.1 of
the Receivables Purchase Agreement.
1.18.Accounting of Purchases. The Purchaser hereby agrees that the Purchaser
shall not prepare any financial statements which shall account for the
transactions contemplated hereby in any manner other than as purchases of
the Purchased Receivables by the Purchaser or in any other respect account
for or treat such transactions (including for accounting purposes and,
where taxes are not consolidated, for tax reporting purposes, except as
required by law) in any manner other than as purchases of the Purchased
Receivables by the Purchaser.
MISCELLANEOUS
1.19.Payments. Each cash payment to be made by the Purchaser or the Company
hereunder shall be made not later than 3:00 p.m. (New York time) on the
required payment date in Dollars by wire transfer to a bank account of the
Purchaser or the Company, as the case may be, designated in writing by the
Purchaser to the Company or the Company to the Purchaser, as the case may
be.
1.20.Costs and Expenses. (a) The Company hereby agrees to indemnify the
Purchaser from and against any and all claims, damages, expenses, losses,
liabilities, penalties, judgments, suits, actions, costs, charges, and
disbursements (including all reasonable fees and all other charges and
disbursements of any law firm or other counsel for the Purchaser)
(collectively, "Indemnification Amounts") of any kind or nature whatsoever
arising out of, relating to or resulting from (whether directly or
indirectly) this Agreement or the transactions contemplated hereby, or with
respect to the use of proceeds of purchases, or in respect of any Purchased
Receivable and Related Security purchased hereunder, including any and all
Indemnification Amounts relating to or resulting from any of the following:
(i)the failure of any Purchased Receivable to be an Approved
Receivable, the failure of any information contained in any
report delivered under this Agreement to be true and
correct, or the failure of any other information provided to
the Purchaser with respect to the Purchased Receivables or
pursuant to or in connection with this Agreement to be true
and correct;
(ii)the failure of any representation or warranty or statement or
certification
(iii)made or deemed made by the Company (or any of its officers)
under or in connection with this Agreement to have been true
and correct in all material respects when made;
(iv)the failure by the Company to comply with any applicable law,
rule or regulation (including without limitation "bulk
sales" or analogous laws of any jurisdiction) with respect
to any Purchased Receivable; or the failure of any Purchased
Receivable to conform to any such applicable law, rule or
regulation;
(iv)the failure to vest in the Purchaser a valid and enforceable
ownership interest in the Purchased Receivables, in each
case free and clear of any Lien (other than Permitted
Liens);
(v)the failure to have filed, or any delay in filing, financing
statements or other similar instruments or documents under
the UCC of any applicable jurisdiction or other applicable
laws with respect to any Purchased Receivables, whether at
the time of purchase or at any subsequent time;
(vi)(A) any dispute, claim, offset, billing adjustment or defense
of the Obligor to the payment of any Purchased Receivable
(including, without limitation, a defense based on such
Receivable not being a legal, valid and binding obligation
of such Obligor enforceable against it in accordance with
its terms), (B) or any other claim resulting from the sale
of the goods or services related to such Purchased
Receivable or the furnishing or failure to furnish such
goods or services or relating to collection activities with
respect to such Purchased Receivable, or (C) any Customer
Dispute;
(vii)any failure of the Company to perform or comply with its
duties or obligations in accordance with the provisions of
this Agreement;
(viii)any claim, investigation, litigation or proceeding arising
out of or in connection with the goods, insurance or
services relating to any Purchased Receivable;
(ix)the commingling of any portion of Collections at any time
with other funds;
(x)any investigation, litigation or proceeding (including any
bankruptcy proceeding, insolvency proceeding or appellate
proceeding) related to this Agreement, the use of proceeds
of purchases of Receivables or the ownership of the
Purchased Receivables and Related Security;
(xi)the failure to notify any Obligor of the assignment of any
Receivable from the Company to the Purchaser, or the failure
to require that payments (including without limitation under
insurance policies) be made directly to the Purchaser, as
permitted by law;
(xii)any taxes asserted or imposed in respect of the Purchased
Receivables or purchases and sales of Receivables or
interests therein; or
(xiii) any action or omission by the Company which reduces or
impairs the rights of the Purchaser with respect to any
Purchased Receivable or Related Security; provided, however,
that in no event shall the Company be required to pay any
Indemnification Amount hereunder to the extent such amount
(A) results from the gross negligence or willful misconduct
on the part of the Purchaser, (B) relates to any overall net
income taxes or franchise taxes imposed on the Purchaser by
the State of Delaware or (C) results from an Obligor's
failure to pay amounts in respect of such Purchased
Receivable because of such Obligor's financial inability to
pay such amounts.
(b) In addition to the rights of indemnification granted under paragraph
(a) above, the Company hereby agrees to pay:
(i) all reasonable costs and expenses (including, without
limitation, all reasonable fees and all other charges and
disbursements of any law firm or other counsel for the
Purchaser) of the Purchaser in connection with (A) the
preparation, negotiation, execution, delivery and
administration (including, without limitation, periodic
auditing) of this Agreement and any potential or actual
amendment, modification or waiver of this Agreement; (B) the
Purchaser's obtaining advice as to the rights and remedies
of any Person under this Agreement (including without
limitation in connection with any "workout" or any
bankruptcy or insolvency proceeding or any litigation or
other adversary proceeding); and (iii) the enforcement of
this Agreement; and
(ii) any and all stamp and other taxes and fees payable in
connection with the execution, delivery, filing and
recording of this Agreement; and the Company agrees to save
the Purchaser harmless from and against any liabilities with
respect to or resulting from any delay in paying or omission
to pay such taxes and fees.
(c) The benefits of this Section 6.2 may be assigned by the Purchaser and
enforced by the assignees of the Purchaser.
1.21.Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the Company and the Purchaser and their respective
successors (whether by merger, consolidation or otherwise) and assigns. The
Company agrees that it will not assign or transfer all or any portion of
its rights or delegate any of its obligations hereunder without the prior
written consent of the Purchaser.
The Company acknowledges that the Purchaser will, concurrently herewith,
assign to the Unaffiliated Purchaser all of the Purchaser's right, title and
interest in, to and under (but none of the Purchaser's obligations under),
whether now or hereafter owned, existing or arising, this Agreement and the
Assignments. The Company consents to such assignment and agrees that the
Unaffiliated Purchaser, to the extent provided in the Receivables Purchase
Agreement, shall be entitled to enforce the terms of this Agreement and the
Assignments and the rights (including, without limitation, the right to grant or
withhold any consent or waiver) of the Purchaser directly against the Company.
The Company hereby consents to all of the terms of the Receivables Purchase
Agreement.
1.22.GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
0.00.Xx Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Purchaser, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers
and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
1.24.Amendments and Waivers. Neither this Agreement nor any terms hereof may be
amended, supplemented or modified except in a writing signed by the
Purchaser and the Company.
1.25.Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
1.26.Notices. All demands, notices and communications hereunder shall be in
writing delivered by hand or by facsimile and shall be deemed to have been
duly given, in the case of notice by facsimile, when telecopied to the
following number, or, in the case of notice by hand, if personally
delivered at the following addresses or to such other addresses as may be
hereafter notified by the respective parties hereto:
The Purchaser:
Xxxxxx American Receivables, LLC
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
The Company:
Great American Knitting Xxxxx, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
1.27.Counterparts. This Agreement may be executed by one or more of the parties
to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
1.28.WAIVERS OF JURY TRIAL. EACH PARTY HERETO HEREBY 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 ANY OTHER DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES HERETO AGAINST ANY
OTHER PARTY OR ANY PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. EACH PARTY HERETO HEREBY 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 WHICH SEEKS, IN WHOLE OR
IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR
ANY OTHER DOCUMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, AMENDMENTS AND RESTATEMENTS, OR
MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER DOCUMENT (INCLUDING WITHOUT
LIMITATION ANY EXTENSION OR PROPOSED EXTENSION OF THE FACILITY TERMINATION
DATE).
0.00.Xx Bankruptcy Petition. The Company covenants and agrees that, prior to
the date which is one year and one day after payment in full of all its
obligations hereunder, it will not institute against, or join any other
Person in instituting against, or encourage or solicit any Person to
institute against, the Purchaser any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any federal or state bankruptcy or similar law.
0.00.Xxxxxxx Recourse; Survival. The obligations of the Purchaser hereunder
shall be due and payable only to the extent that the Purchaser's assets are
sufficient to pay such obligations. Without limitation of the obligations
of the Purchaser, no recourse shall be had for the payment of any amount
owing in respect of this Agreement or any other Document against any
member, manager, director, officer, employee or agent of the Purchaser
based solely on their status as such. The provisions of this Section 6.12
and the other provisions of this Article VI shall survive the termination
of this Agreement.
1.31.Termination. This Agreement will terminate on the earlier of (i) the first
anniversary of the date hereof and (ii) the first date on which all
Receivables sold hereunder have been collected and the proceeds thereof
turned over to the Purchaser and all other amounts owing to the Purchaser
hereunder shall have been paid in full or, if Receivables sold hereunder
have not been collected such Receivables have become Defaulted Receivables
and the Servicer shall have completed its collection efforts in respect
thereto; provided, however, that the indemnities of the Company to the
Purchaser set forth in this Agreement shall survive such termination and
provided further that the Purchaser shall remain entitled to receive any
collections on Receivables sold hereunder which have become Defaulted
Receivables after the Servicer shall have completed its collection efforts
in respect thereof.
1.32.Headings. The headings and captions of sections, subsections and articles
in this Agreement, of schedules to this Agreement, and the table of
contents of this Agreement, are for purposes of reference only and shall
not affect the meaning or interpretation of any provision of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
all as of the day and year first above written.
GREAT AMERICAN KNITTING XXXXX, INC.
By: ________________________
Name:
Title:
XXXXXX AMERICAN RECEIVABLES, LLC
By: ________________________
Name:
Title:
EXHIBIT A
Assignment
For Value Received, the undersigned does hereby sell, assign
and transfer unto Xxxxxx American Receivables, LLC, its successors or assigns,
all the right, title and interest of the undersigned in, to and under each and
every Receivable (as defined in the Receivables Transfer Agreement dated as of
May 12, 2000 between the undersigned and said LLC) described in Schedule I
annexed hereto and in, to and under all guarantees thereof and collateral
security therefor, effective as of the close of business on [insert the
related Cutoff Date] (the "Cutoff Date").
This Assignment is made without recourse but pursuant to and
upon all the warranties, representations, covenants and agreements on the part
of the undersigned contained in said Receivables Transfer Agreement and is to
be governed by, and construed and interpreted in accordance with, said
Receivables Transfer Agreement and the law of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be duly executed this 12th day of May, 2000.
GREAT AMERICAN KNITTING XXXXX, INC.
By ________________________________
Title:
GREAT AMERICAN KNITTING XXXXX, INC.
RECEIVABLES TRANSFER AGREEMENT
Dated as of May 12, 2000
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1 Defined Terms.................................................1
1.2 Other Definitional Provisions.................................4
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 Purchase and Sale of Receivables..............................5
2.2 Purchase Price................................................6
2.3 Payment of Purchase Price.....................................7
2.4 No Repurchase.................................................7
2.5 Adjustments....................................................7
2.6 Limited Repurchase Obligation.................................7
2.7 Purchase of Receivables.......................................8
2.8 Certain Charges. .............................................8
2.10 Further Action.................................................8
2.11 Further Assurances by Purchaser................................9
ARTICLE III
CONDITIONS TO PURCHASE AND SALE
3.1 Conditions Precedent to the First Purchase of Receivables......10
3.2 Conditions Precedent to each Purchase of Receivables...........10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Company Relating to the
Company..............................11
4.2 Representations and Warranties of the Company Relating to the
Receivables .........................13
ARTICLE V
COVENANTS
5.1 Affirmative Covenants of the Company...........................14
5.2 Negative Covenants of the Company..............................15
5.3 Covenants of the Servicer......................................17
5.4 Accounting of Purchases........................................17
ARTICLE VI
MISCELLANEOUS
6.1 Payments......................................................17
6.2 Costs and Expenses............................................17
6.3 Successors and Assigns........................................19
6.4 GOVERNING LAW.................................................19
6.5 No Waiver; Cumulative Remedies................................20
6.6 Amendments and Waivers........................................20
6.7 Severability..................................................20
6.8 Notices.......................................................20
6.9 Counterparts..................................................20
6.10 WAIVERS OF JURY TRIAL.........................................20
6.11 No Bankruptcy Petition........................................21
6.12 Limited Recourse; Survival....................................21
6.13 Termination...................................................21
6.14 Headings......................................................22
EXHIBIT
A - Form Assignment
