PARTIAL RELEASE AGREEMENT
PARTIAL RELEASE AGREEMENT, dated as of May 12, 2000, by and among Bank of
America, N.A. f/k/a Nationsbank, N.A., as agent for the Lenders under the Credit
Agreement referred to below (in such capacity, the "Agent"), Great American
Knitting Xxxxx, Inc., a Delaware corporation ("Great American") and Xxxxxx
American Corp., a Delaware corporation (the "Borrower").
W I T N E S S E T H :
WHEREAS, the Borrower, Xxxxxx American Investment Corp., Xxxxxx American
Group, Inc., the Subsidiary Guarantors party thereto (including Great American),
the Lenders party thereto, the Agent and Gleacher Natwest Inc., as documentation
agent, are parties to a Credit Agreement, dated as of May 18, 1998 (as amended
through the date hereof, the "Credit Agreement"), pursuant to which the Lenders
agreed to extend credit to the Borrower;
WHEREAS, the obligations of the Borrower to the Agent and the
Lenders under the Credit Agreement are guaranteed by the Subsidiary Guarantors
(including Great American) pursuant to the Credit Agreement and are secured by
the Collateral (as defined in the Credit Agreement);
WHEREAS, the Borrower, Great American and the other Credit
Parties (as defined in the Credit Agreement) have requested that the Agent and
the Lenders release any and all security interests in the Collateral described
on Schedule I attached hereto (the "Released Collateral") in connection with the
Receivables Transfer Agreement, dated as of the date hereof, between Great
American and Xxxxxx American Receivables, LLC, a Delaware limited liability
company and a wholly-owned subsidiary of Great American;
WHEREAS, the Agent and the Lenders are willing to release
their security interests in the Released Collateral, on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and
agreements herein, the Borrower, Great American and the Agent hereby agree as
follows:
1. All terms used herein that are defined in the Credit
Agreement and not otherwise defined herein are used herein as defined therein.
2. Without recourse and without any representation or warranty
of any kind except as expressly provided herein, (a) the Agent hereby terminates
and releases any and all liens, security interests or other charges or
encumbrances in favor of the Agent, for the benefit of the Lenders, or the
Lenders in the Released Collateral which secures the Credit Party Obligations,
and (b) the Borrower and Great American hereby release the Agent and the Lenders
from any duty, liability or obligation (if any) under the Credit Agreement and
any other Credit Document with respect to the Released Collateral.
3. Concurrently with its execution and delivery hereof, the
Agent will execute and deliver to Great American the UCC-3 Financing Statements
described in Schedule II hereto and releasing its security interests in the
Released Collateral perfected by the filing of the UCC-1 Financing Statements
described in such Schedule II. In addition, at the request and the expense of
Great American, the Agent will promptly execute and deliver to Great American
such additional instruments and other writings, and take such other action, as
Great American may reasonably request to effect or evidence the release of the
security interest of the Agent or the Lenders in the Released Collateral.
4. The Borrower hereby agrees (i) to pay all costs and
expenses in connection with the preparation, execution, delivery, filing and
recording of this Agreement, the release documents executed in furtherance
hereof, and the performance of any other acts and the execution of any other
documents required to effect the release of any security pursuant hereto,
including, without limitation, the fees and disbursements of counsel to the
Agent and the Lenders; and (ii) to pay any and all stamp and other transfer or
filing taxes and fees payable or determined to be payable in connection with the
execution and delivery hereof or any release document pursuant hereto, and to
hold the Agent and the Lenders harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes or fees.
5. Except as otherwise expressly provided herein, the Borrower
and Great American confirm and agree that (i) to the extent that any Credit
Document purports to assign or pledge to the Agent, for the benefit of the
Lenders, or to grant to the Agent, for the benefit of the Lenders, a security
interest in or lien on, any collateral as security for the Credit Party
Obligations of the Credit Parties from time to time existing in respect of the
Credit Documents, such pledge, assignment and/or grant of a security interest or
lien is hereby ratified and confirmed in all respects as security for all Credit
Party Obligations, whether now existing or hereafter arising. This Agreement
does not and shall not affect any of the Credit Party Obligations of any Credit
Party under or arising from the Credit Agreement or any other Credit Document,
including, without limitation, the Borrower's obligation to repay the Loans in
accordance with the terms thereof and the Credit Agreement, or the Credit Party
Obligations of any other Credit Party under any Credit Document to which such
Person is a party, all of which Credit Party Obligations shall remain in full
force and effect. Except as expressly provided herein, the execution, delivery
and effectiveness of this Agreement shall not operate as a waiver of any right,
power or remedy of the Agent and the Lenders under the Credit Agreement or any
other Credit Document, nor constitute a waiver of any provision of the Credit
Agreement or any other Credit Document.
6. The Agent represents and warrants that (i) to the best of
the Agent's knowledge, but without conducting any searches in any filing office
of any jurisdiction, Schedule II hereto accurately lists all UCC-1 Financing
Statements on file in any filing office and having Great American as debtor and
the Agent or any Lender as secured party that have been filed pursuant to the
Credit Documents and cover any Released Collateral and (ii) the Agent has all
requisite authority pursuant to the Credit Documents (including the consent of
the requisite Lenders) to enter into this Agreement and to release the Released
Collateral hereunder.
7. This Agreement shall (i) be binding on the Agent, the
Lenders, the Borrower and Great American and their respective successors and
assigns, and (ii) inure to the benefit of the Agent, the Lenders, the Borrower
and Great American and their respective successors and assigns.
8. This Agreement may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement.
9. This Agreement shall be governed by and construed in
accordance with the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
GREAT AMERICAN KNITTING XXXXX, INC.
By:
Name:
Title:
XXXXXX AMERICAN CORP.
By:
Name:
Title:
BANK OF AMERICA, N.A., as Agent
By:
Name:
Title:
SCHEDULE I
Released Collateral
All of Great American's right, title, and interest in, to and
under all of the following, whether now or hereafter owned, existing or arising
and wherever located:
(i) all Initial Receivables and Subsequent Receivables and all
payment and enforcement rights (but none of the obligations of any Person) with
respect to such Initial Receivables and Subsequent Receivables,
(ii) all Related Security with respect to such Initial
Receivables and Subsequent Receivables,
(iii)all Collections, and
(iv) any and 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.
Great American and the LLC intend the transactions
contemplated by the Receivables Transfer Agreement to constitute sales by Great
American to the LLC of the Receivables and the other items described above.
As used herein, the following terms have the meanings set
forth below (such meanings to be equally applicable to both the singular and the
plural forms of the terms defined):
"Assignment" means one or more assignments of Receivables in
the form of Exhibit A to the Receivables Transfer Agreement.
"Collections" means (i) all payments, collections and
recoveries received or paid by or on behalf of the LLC, the Originator, the
Servicer, any Obligor or any other Person with respect to the Initial
Receivables and Subsequent Receivables and all Related Security with respect
thereto and (ii) all payments made by the Originator, the Servicer or the LLC
under the Receivables Transfer Agreement and the Receivables Purchase Agreement.
"First Purchase Date" means May 12, 2000.
"Great American" means Great American Knitting Xxxxx, Inc., a
Delaware corporation.
"Initial Receivables" means the Receivables purchased by the
LLC from Great American on the First Purchase Date and identified on Schedule I
to an Assignment delivered by Great American to the LLC on the First Purchase
Date.
"LLC" means Xxxxxx American Receivables, LLC.
"Obligor" means the Person or Persons obligated to make
payments on a Receivable, including without limitation any guarantor of such
obligations.
"Originator" means Great American.
"Person" means any association, partnership, business trust,
company, corporation, limited liability company, estate, joint venture, natural
person, trust or other entity.
"Receivables" means amounts due to Great American, 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 between the LLC, as seller, and Banc of America Commercial
Corporation, as purchaser, as the same may be amended, amended and restated or
otherwise modified from time to time.
"Receivables Transfer Agreement" means the Receivables
Transfer Agreement between Great American, as originator, seller and servicer,
and the LLC, as purchaser, as the same may be amended, amended and restated or
otherwise modified from time to time.
"Related Security" means, 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.
"Second Purchase Date" means the date on which the LLC shall
make a second purchase of Receivables under the Receivables Transfer Agreement,
such date being mutually agreed between Great American and the LLC.
"Secured Party" means the LLC.
"Servicer" means Great American.
"Subsequent Receivables" means the Receivables purchased by
the LLC from Great American on the Second Purchase Date and identified on
Schedule I to an Assignment delivered by Great American to the LLC on the Second
Purchase Date.
"UCC" mean the Uniform Commercial Code as in effect in the
applicable jurisdiction.
SCHEDULE II
UCC-1 Financing Statements
Debtor Filing Office File Number Date
----------------------------------- -------------------------------------------- ---------------------- --------------
Great American Knitting Xxxxx, Secretary of State - North Carolina 0199830226 05/29/98
Inc. 0199830227 05/29/98
0199830246 05/29/98
0199830894 06/01/98
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx 00-0000 05/29/98
98-1077 06/01/98
Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx 000000 05/29/98
981425 06/01/98
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx 000000 06/01/98
Halifax County, North Carolina 98-536 06/01/98
Orange County, North Carolina 98-628 06/01/98
Department of State - New York 115552 06/01/98
Xxx Xxxx Xxxxxx, Xxx Xxxx 00XX00000 07/02/98
Secretary of State - Pennsylvania 28981753 05/29/98
28991765 06/01/98
Berks County, Pennsylvania 98-1361ST 05/29/98
98-1407ST 06/03/98
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx 000000 06/01/98
