Bank of America
Banc of America Commercial Corporation
Receivables Purchase Agreement
entered into between
Xxxxxx American Receivables, LLC
and
Banc of America Commercial Corporation
Banc of America Commercial Corporation
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Ladies and Gentlemen:
We are pleased to confirm the following agreement whereby from
time to time we may sell certain of our accounts receivable to you and you may
purchase such accounts receivable from us on the terms and conditions set forth
herein.
SECTION 1. DEFINITIONS
1.1......"Approved Receivable" shall mean a Receivable that has been
credit approved by you and is otherwise acceptable to you, as evidenced by your
written approval, as more fully described in Section 2.1 of this Agreement.
1.2......"Assignment" shall mean an Assignment, substantially in the
form of Exhibit A hereto, evidencing our sale, transfer and assignment to you of
a Pool of Approved Receivables.
1.3......"Banking Day" shall mean a day for dealings by and between
banks, excluding Saturday, Sunday and any day which shall be a legal holiday in
the City of Atlanta, Georgia and any other day on which banking institutions are
authorized to close in the City of Atlanta, Georgia.
1.4......"Xxxxxx American" shall mean Xxxxxx American Corp, a Delaware
corporation.
1.5......"Collection Turn-Over Date" shall mean for each Approved
Receivable purchased by you: (i) with respect to payments made to us or Great
American on such Approved Receivable by check, up to four (4) Banking Days after
the date such check is received by us or Great American, as the case may be, or
(ii) with respect to payments made to us or Great American by wire transfer, one
(1) Banking Day after the date we or Great American, as the case may be, receive
such wire transfer.
1.6......"Collections" shall mean, with respect to any Purchased
Receivables, all cash collections and all other amounts at any time received or
obtained with respect thereto or attributed or credited to payment thereof,
including all proceeds.
1.7......"Credit and Collection Policy" shall mean, collectively, those
credit and collection policies and practices of Great American and us with
respect to the Receivables as in effect on the date hereof.
1.8......"Credit Risk" shall mean, with respect to any Receivable or
portion thereof, the risk of loss resulting from a Customer's failure to pay
such Receivable as and when due because of such Customer's financial inability.
1.9......"Customer" shall mean, with respect to any Receivable, the
Person identified on the Schedule to the related Assignment as obligated to make
payment of such Receivable.
1.10....."Customer Dispute" shall mean, with respect to any Receivable,
any cause for nonpayment of such Receivable by a Customer obligated thereon
other than the financial inability of such Customer, including, without
limitation, any alleged defense, offset or counterclaim, act of God, war, civil
strife, currency restriction, change in law or governmental policy or foreign
political impediment.
1.11....."Cutoff Date" shall mean, with respect to any Purchased
Receivables, the date identified as such in the related Assignment.
1.12....."Face Amount" shall mean, with respect to any Receivable, the
dollar amount thereof shown on the schedule to the related Assignment.
1.13....."Final Settlement Date" shall mean, with respect to a Pool of
Purchased Receivables, the Banking Day that is three (3) Banking Days after the
earlier of (i) the first Banking Day as of which you shall have received in cash
Collections from such Purchased Receivables in an aggregate amount at least
equal to the sum of (A) the Purchase Price for such Pool of Purchased
Receivables and (B) all other amounts then due and payable by us to you under
this Agreement and (ii) the first Banking Day which is not less than 90 days
after the Purchase Date of such Pool of Purchased Receivables.
1.14....."Great American" shall mean Great American Knitting Xxxxx,
Inc., a Delaware corporation.
1.15....."Person" shall mean an individual, partnership, corporation,
limited liability company, unincorporated organization, trust or joint venture,
or a governmental agency or political subdivision thereof.
1.16....."Pool" shall mean (i) one or more Receivables or Approved
Receivables, as appropriate, that we propose to sell to you on a single Purchase
Date or (ii) one or more Purchased Receivables sold to you on a single Purchase
Date and identified in the same Assignment.
1.17....."Prime Rate" shall mean the rate of interest announced by Bank
of America, N.A. from time to time as its Prime Rate.
1.18....."Purchase Date" shall mean, with respect to any Pool of
Approved Receivables, the Banking Day such Pool is purchased by you pursuant to
the terms of this Agreement.
1.19....."Purchase Price" shall mean, with respect to any Pool of
Purchased Receivables the purchase price payable by you to us for such Pool of
Purchased Receivables, calculated pursuant to Section 2.2 of this Agreement.
1.20....."Purchased Receivables" shall mean any Approved Receivables
purchased by you from us pursuant to this Agreement.
1.21....."Receivables" shall mean (i) accounts arising from Sales, the
proceeds thereof, and all instruments, contract rights, chattel paper,
documents, insurance proceeds and general intangibles relating directly thereto
and (ii) all security interests or liens and property from time to time
purporting to secure payment of such Receivables, together with all financing
statements signed by a Customer describing any collateral securing such
Receivables, and all guarantees, insurance and other arrangements of whatever
character from time to time supporting or securing payment of such Receivables,
whether now existing or hereafter created.
1.22....."Receivables Transfer Agreement" shall mean the Receivables
Transfer Agreement, dated as of May 12, 2000, between Great American and us.
1.23....."Sales" shall mean the sale of Gold Toe brand and other socks
by Great American in the ordinary course of its business to Customers in the
United States of America.
All terms that are used in this Agreement and that are defined in the
Uniform Commercial Code as currently in effect in the State of New York (the
"New York UCC") are used herein as defined in the New York UCC.
SECTION 2. APPROVAL AND SALE; PURCHASE PRICE; COLLECTIONS
2.1......We may submit to you for your review not more than two times
and only during the period from the date hereof through June 30, 2000, a
schedule identifying a Pool of Receivables, which schedule shall be in a form
acceptable to you and shall include the name of the Customers obligated on such
Receivables, the selling terms of such Receivables, an aging of such
Receivables, a copy of the invoices for such Receivables and such other
information with respect to such Receivables and such Customers as you may
request. Upon receipt of such information, you will make such credit and other
investigations as you deem appropriate in accordance with your customary
business practices. After your completion of such investigations, you will
advise us as to which Receivables, if any, in such Pool of Receivables are
Approved Receivables. We understand that (i) you do not have any obligation to
approve any Receivable or all or any portion of a Pool of Receivables, (ii) you
may approve only a portion of a Pool of Receivables, (iii) in no event will a
Receivable 60 days or more past the due date thereof be an Approved Receivable,
and (iv) any approval of a Receivable or a Pool of Receivables will be made by
you in writing and shall be subject to the terms and conditions of such written
approval.
2.2......Subject to the terms and conditions of this Agreement, on each
Purchase Date we will sell, transfer and assign to you, without recourse to us
other than as provided in this Agreement, and you will purchase from us, the
Pool of Approved Receivables identified on Schedule I to an Assignment that we
deliver to you on such Purchase Date. Upon your receipt of such Assignment on
such Purchase Date, you shall be the absolute owner of all of the Purchased
Receivables identified in such Assignment. In addition, we hereby assign to you
all of our right, title and interest (but none of our obligations), in, to and
under the Receivables Transfer Agreement and the Guarantee dated as of May 12,
2000 (the "Guarantee") made by Xxxxxx American in our favor. The Purchase Price
of the Pool of Approved Receivables sold to you on a Purchase Date shall be an
amount equal to (i) the aggregate Face Amount of the Approved Receivables in
such Pool less (ii) the sum, for all such Approved Receivables, of the product,
for each day during the period from such Purchase Date to the earlier of the
date you have received payment in full of the aggregate Face Amount of such
Approved Receivables and the Final Settlement Date with respect to such Pool, of
(A) 95% of the Face Amount of each Approved Receivable in such Pool less any
payments received and applied before such day against such Approved Receivable
and (B) the Prime Rate less (iii) .5% of the aggregate Face Amount of the
Approved Receivables in such Pool. Any portion of the Purchase Price that has
not been advanced by you to us pursuant to Section 2.5 of this Agreement shall
be payable to us, on the Final Settlement Date for such Pool of Purchased
Receivables, by wire transfer of immediately available funds to an account of
ours that we designate to you in writing.
2.3......Except as provided in Section 4.2 of this Agreement, the sale
and purchase of Receivables contemplated by this Agreement shall be on a
non-notification basis and you shall not notify any Customers without our prior
consent. Great American shall, as agent for you and us, in accordance with
Section 4 of this Agreement and Section 5.3 of the Receivables Transfer
Agreement, receive all Collections on the Purchased Receivables from the
applicable Customers until its authority to do so is terminated pursuant to
Section 4.1 of this Agreement. Prior to any such termination, (i) all
Collections received by us or Great American with respect to Purchased
Receivables shall be held in trust for you. We shall cause all Collections
constituting collected funds with respect to any Purchased Receivable to be wire
transferred to you on each Collection Turn-Over Date, and such collected funds
shall be applied by you to pay such Purchased Receivable, with any excess to be
held by you and applied as provided below in this Section 2.3 and (ii)
Collections with respect to Purchased Receivables may be commingled with other
collections of Receivables owned by Great American pending the transfer of such
Collections to you. On the Final Settlement Date with respect to a Pool of
Purchased Receivables, you may charge our account (which charge shall, without
any further action, constitute a repurchase by us from you of the relevant
Purchased Receivable pursuant to Section 3.3 of this Agreement) with the amount
of each Purchased Receivable in such Pool, that has not been paid by reason of a
Customer Dispute. In the event that Collections received by you on or prior to
the Final Settlement Date with respect to any Pool of Purchased Receivables
exceed the Purchase Price of such Pool, you will apply such excess on such Final
Settlement Date to any other amounts owing by us to you on such Final Settlement
Date (whether on account of dilutions or otherwise). In the event that
Collections received by you on or prior to the Final Settlement Date with
respect to a Pool of Purchased Receivables exceed, after application in
accordance with the immediately preceding sentence, the aggregate of all amounts
owing by us to you hereunder on such Final Settlement Date, you will pay such
excess by wire transfer of immediately available funds to an account of ours
that we designate to you in writing.
2.4......Within fifteen (15) days after the end of each month, you
shall render to us a statement of our account with you showing the accountings
for your charges and receipts and other transactions between us during such
month with respect to the transactions contemplated hereby. Your monthly
statement of our account with you shall be deemed correct and binding upon us
and shall constitute an account stated between us unless you receive a written
statement of our exceptions within thirty (30) days after same is mailed to us.
We shall pay or cause to be paid to you all Collections and other amounts due to
you hereunder on the date when due by wire transfer of immediately available
funds to an account of yours that you designate to us in writing.
2.5......Prior to the Final Settlement Date with respect to a Pool of
Approved Receivables purchased by you, upon our request you will advance to us
all or a portion of the anticipated Purchase Price payable by you to us for each
Purchased Receivable in such Pool, but in any event not exceeding ninety-five
percent (95%) of the Face Amount of such Purchased Receivable. We shall pay to
you interest on such advanced amount at the rate per annum equal to the Prime
Rate for the number of days that such advance remains outstanding until such
Final Settlement Date and thereafter until paid at the rate per annum equal to
the Prime Rate plus 2%. Such advance shall be deemed repaid on such Final
Settlement Date to the extent of the then outstanding balance of Purchased
Receivables in such Pool which are not repaid by reason of Credit Risk, and we
shall have no obligation to pay you interest on any such deemed repaid amount
from and after such Final Settlement Date. Further, interest paid by us as
provided herein shall reduce, dollar for dollar, the amount of the Purchase
Price payable by you to us on such Final Settlement Date. Interest shall be
computed on the basis of a year of three hundred sixty (360) days, for actual
days elapsed.
2.6......It is the express intent of the parties to this Agreement that
each assignment and conveyance of Purchased Receivables pursuant to this
Agreement be construed as a true sale of such Purchased Receivables by us to
you. It is, further, not the intention of the parties to this Agreement that
each such assignment and conveyance be deemed a grant of a security interest in
the Purchased Receivables by us to you to secure a debt or other of our
obligations. However, in the event that any such assignment and conveyance of
the Purchased Receivables hereunder is characterized by any court of competent
jurisdiction as a loan rather than a sale, we shall be deemed hereunder to have
granted to you, and we hereby grant to you, a perfected first priority security
interest in all of our right, title and interest in, to and under all of the
Purchased Receivables, whether now or hereafter owned, existing or arising and
wherever located and all of our right, title and interest in, to and under the
Receivables Transfer Agreement and the Guarantee. You shall have, with respect
to the property described in this subsection 2.6, and in addition to all the
other rights and remedies available to you under this Agreement and applicable
law, any additional rights and remedies of a secured party under any applicable
enactment of the Uniform Commercial Code.
2.7......The sales, transfers, assignments and conveyances of Purchased
Receivables contemplated herein do not constitute, and are not intended to
result in a creation or assumption by you of any of our obligations or the
obligations of any other Person in connection with the Purchased Receivables or
any agreement or instrument relating thereto, including, without limitation, any
obligation to any Customer.
2.8......In connection with the foregoing conveyances, we agree to
record and file on or prior to each related Purchase Date, at our own expense,
UCC-1 financing statements (and thereafter continuation statements with respect
to such financing statements when applicable) with respect to the Approved
Receivables to be purchased on such Purchase Date, meeting the requirements of
applicable state law, in such manner and in such jurisdictions as are necessary
to perfect the purchases of such Approved Receivables by you from us, to obtain
oral confirmation of such filing on or prior to such related Purchase Date and
to deliver file-stamped copies of such financing statements or other evidence of
such filings within five Banking Days after such related Purchase Date.
SECTION 3. CREDIT RISK; REPURCHASE
3.1......Except as hereinafter provided, you assume the entire Credit
Risk on all Purchased Receivables assigned to you under this Agreement as to
which the Customer has actually received and finally accepted the delivery of
Gold Toe brand and other socks. We assume the risk of nonpayment of Purchased
Receivables where nonpayment results from any Customer Dispute.
3.2......Without your prior written consent, we will not vary the terms
(including, without limitation, amount, maturity and the like) of, or grant any
adjustment, refund or other indulgence with respect to, any Purchased
Receivable. We will promptly notify you if any Purchased Receivable is not
timely paid by the Customer, if we become aware of any Customer Dispute, or if
we receive any information of any matter adversely affecting the value,
enforceably or collectibility of any Purchased Receivable or of an adverse
change in the financial condition of any Customer obligated on a Purchased
Receivable. You shall use good faith efforts (but shall have no obligation) to
cooperate and assist us in the adjustment of any Customer Dispute. We shall
promptly notify you, upon accepting returns or granting allowances under the
terms of any Purchased Receivable.
3.3......In the event that you determine that a Purchased Receivable
(i) remains unpaid on the Final Settlement Date for such Purchased Receivable by
reason of a Customer Dispute or is subject to a Customer Dispute at any other
time, (ii) is subject to any change of terms after its Purchase Date without
your prior consent, (iii) is or becomes subject to a lien or security interest
(other than in your favor), or (iv) does not comply with each representation,
warranty and covenant with respect to such Purchased Receivable set forth in
this Agreement or the Receivables Transfer Agreement, you may charge our account
at any time and such charge, without any further action, shall constitute a
repurchase by us from you of the relevant Purchased Receivable. In addition, you
may charge our account with the amount of each Purchased Receivable if we breach
in any material respect any representation or warranty made by us in this
Agreement or if we default in the performance of any payment or other covenant,
obligation or agreement binding on us and contained in this Agreement. Any
repurchase resulting from any such charge to our account shall be without
recourse or warranty of any kind by you other than a warranty that you have not
diminished the title received from us. In connection with any such repurchase,
we shall pay to you on demand all amounts payable by us to you hereunder with
respect to the relevant Purchased Receivable or Purchased Receivables, less any
Collections you received thereon, plus interest at a rate per annum equal to the
Prime Rate plus 2% for the period from the date of such demand to the date of
reassignment.
SECTION 4. SERVICING; NOTIFICATION
4.1......You hereby appoint, with our consent, Great American to
perform all services necessary to administer, service and collect the Purchased
Receivables and remit Collections from such Purchased Receivables to you as
described in Section 2.3 of this Agreement. With respect to such duties Great
American shall be acting as your agent and shall be subject to the following
conditions: (i) it shall exercise that degree of skill and care consistent with
prudent industry standards with respect to the administration, servicing,
collection and reporting of Receivables (both Purchased Receivables and
non-purchased Receivables); (ii) it shall comply with all applicable state and
federal laws and regulations in connection with our performing such duties;
(iii) it shall comply with the Credit and Collection Policy in connection with
the administration, servicing, collection and reporting of Receivables (both
Purchased Receivables and non-purchased Receivables) , a copy of the Credit and
Collection Policy having been delivered to you prior to the initial Purchase
Date under this Agreement; and (iv) without your consent, it shall not take any
action with respect to any Purchased Receivable that could impair your rights
therein or the enforceability, value or collectibility thereof. We understand
that Great American's authority to perform such duties (A) shall terminate
automatically if it has called a meeting of creditors or ceased conducting
business or upon the institution by or against it of any proceeding under any
bankruptcy or insolvency laws or (B) shall terminate at your option, if we
breach any representation, warranty or covenant or default in any of our
obligations in this Agreement.
4.2......You shall have the right to directly communicate with any
Customer obligated on a Purchased Receivable (and, in the case of clauses (ii)
or (iii) below, commence collection proceedings) (i) to obtain current
information that concerns such Customer's financial condition and
creditworthiness and that is not provided promptly by us to you after request,
(ii) if any portion of such Customer's Purchased Receivables remains unpaid five
days after the applicable Final Settlement Date, (iii) if we, Great American,
Xxxxxx American or such Customer has called a meeting of its creditors or ceased
conducting business or upon the institution by or against such Person of any
proceeding under any bankruptcy or insolvency law, or (iv) if we default in the
payment as and when due and payable of any amount payable by us to you under
this Agreement.
4.3......You shall have the right to bring suit, in your name or our
name or the name of Great American, and generally have all other rights
respecting Purchased Receivables which are past due solely and exclusively as a
result of any Customer's financial inability, including without limitation the
right to: accelerate or extend the time of payment, settle, compromise, release
in whole or in part any amounts owing on any Purchased Receivables and issue
credits in your name or ours. You may endorse or sign your name or ours on any
checks or other instruments with respect to Purchased Receivables or the goods
covered thereby. Any and all returned, reclaimed or repossessed inventory and
goods relating to Purchased Receivables shall be set aside by us, marked with
your name and held by us in trust for you as owner, and for your account.
Further, we shall promptly notify you of the receipt of all such inventory and
goods and, at your direction, deliver the same to you or sell the same for your
account and remit the full proceeds to you.
4.4......We agree to make our records, files and books of account
available to you on request, and to allow you and your agents and
representatives to visit our premises during normal business hours to examine
such records, files and books of account and to make copies or extracts thereof,
and to allow you to conduct such examinations as you deem necessary. You shall
be entitled to charge our account the sum of $750 per day for each examiner
involved in such examination up to a maximum amount of $5000 for any Pool of
Receivables audited by you.
4.5......In connection with the sale and assignment of Purchased
Receivables hereunder, we agree, at our own expense, on each Purchase Date, to
indicate or cause to be indicated clearly and unambiguously in our accounting
records that such Purchased Receivables have been sold to you pursuant to this
Agreement as of the applicable Purchase Date.
4.6......Notwithstanding anything to the contrary, Collections which
are received from any Customer who is an account debtor both with respect to
Receivables that are Purchased Receivables and Receivables that are not
Purchased Receivables and which are not identified to specific Receivables,
shall first be applied to such Purchased Receivables until all such Purchased
Receivables have been paid in full and thereafter to Receivables which are not
Purchased Receivables, regardless of the respective dates such Receivables were
originated and regardless of any notations on payment items.
SECTION 5. INFORMATION
5.1......We shall furnish you promptly upon request such reports and
other information relating to Customers, Great American, Xxxxxx American or the
Receivables as you may from time to time reasonably request.
5.2......For all Purchased Receivables which are past due solely and
exclusively as a result of the Customer's financial inability and for which you
have the Credit Risk, upon your request, we shall provide you with each of the
following: (i) a copy of such Customer's purchase order and/or a signed
confirmation thereof; (ii) a copy of each outstanding invoice and all credit
memoranda; (iii) a notarized statement of account; (iv) copies of all
correspondence to and from such Customer; (v) a copy of our complete collection
file on such Customer; (vi) all guarantees, collateral documents and security
agreements, (vi) proof of delivery of goods or rendering of services, and (vii)
such other documents and information that you may request.
SECTION 6. REPRESENTATIONS AND WARRANTIES
6.1......On the date of this Agreement and on each Purchase Date, we
represent and warrant that (i) we are a duly organized and validly existing
limited liability company under the laws of the State of Delaware; (ii) we are
duly qualified to transact business and in good standing in every jurisdiction
where the failure to be so qualified or in good standing would materially
adversely affect the collectibility of any Receivable or our ability to perform
our obligations hereunder; (iii) no provision of our limited liability company
agreement or any other contractual provision which is binding on us or Great
American or to which or any of our property or Great American's property is
subject restrict our ability to enter into or comply with our obligations under
of this Agreement; (iv) this Agreement is, and each Assignment when delivered
hereunder will be, our legal, valid and binding obligation enforceable against
us in accordance with its terms; and (v) each of the representations and
warranties of Great American set forth in the Receivables Transfer Agreement are
true and correct in all material respects.
6.2......On the date of this Agreement and on each Purchase Date, we
represent and warrant that each Receivable: (i) complies with all applicable
legal requirements; (ii) constitutes a valid and binding unconditional
obligation of the Customer 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 Gold Toe socks
that have been delivered to and accepted by such Customer; (iv) provides for
payment by such Customer in U.S. Dollars; (v) is not past its due date; (vi) is
our exclusive property and free and clear of all security interests, liens, or
claims (other than any security interest granted pursuant to this Agreement);
(vii) does not include any amount as to which such Customer 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
Customer has acknowledged in writing that such specified event or condition has
occurred and 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.
6.3......On the date of this Agreement and on each Purchase Date, we
represent and warrant that with respect to each Receivable: (i) the Customer is
not our Affiliate or in any other way related to us and (ii) any taxes or fees
relating to such Receivable are our sole responsibility.
6.4......On the date of this Agreement and on each Purchase Date, our
chief executive office, principal place of business and the office where we keep
all our books, records and documents evidencing Receivables, the related
contracts and security, if any, are located at the address specified in Exhibit
B hereto (or at such other locations, notified to Purchaser in accordance with
Section 7.3).
SECTION 7. COVENANTS
7.1......We shall maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate records
evidencing Receivables in the event of the destruction of the originals
thereof), and keep and maintain, all documents, books, records and other
information reasonably necessary or advisable for the collection of all
Receivables.
7.2......We shall, at our expense, timely and fully perform and comply
with all material provisions, covenants and other promises required to be
observed by us under the contracts related to Purchased Receivables.
7.3......We shall keep our principal place of business and chief
executive office, and the office where we keep our records concerning
Receivables and all contracts and security related thereto (and all original
documents relating thereto), at our address referred to in Section 6.3 of this
Agreement or, upon 30 days' prior written notice to you, at such other location
in a jurisdiction where all action required by Section 7.5 of this Agreement
shall have been taken and completed.
7.4......We shall comply in all material respects with our credit
policies and procedures for each Purchased Receivable. We shall not make any
material change in our credit policies and procedures if such change would be
reasonably likely to adversely affect the enforceability, value or
collectibility of any Purchased Receivables.
7.5......We shall execute such financing statements (including
amendments thereto and continuation statements thereof) as may be deemed
advisable by you from time to time to establish, maintain and protect your
ownership interest in the Purchased Receivables.
7.6......We shall take all action necessary to assure that our
computer-based systems will at all times operate and effectively process data
including data fields requiring references to dates on and after January 1,
2000. At your request, we shall provide to you evidence acceptable to you of our
compliance with this Section 7.6.
SECTION 8. EFFECTIVE DATE; TERMINATION; BINDING EFFECT
If accepted by you, this Agreement shall be effective on May
12, 2000. Either you or we may terminate this Agreement at any time by giving
the other written notice of termination stating a termination date not less than
sixty (60) days from the date such notice is delivered. This Agreement continues
uninterrupted unless terminated as herein provided. Notwithstanding the
foregoing, you may terminate this Agreement immediately upon the occurrence of
any of the following events: cessation of our business or the calling of a
meeting of our creditors; the commencement by or against us of any proceeding
under any bankruptcy or insolvency law; breach by us of any representation,
warranty, covenant or obligation contained herein; or our failure to pay when
due any obligation owing by us to you or your affiliates. Any termination of
this Agreement, however, shall not affect obligations incurred hereunder prior
to such termination. This Agreement shall bind us, our successors and assigns
and shall inure to the benefit of you, your successors and assigns.
SECTION 9. MISCELLANEOUS
9.1......You retain the right at any time and from time to time to sell
participation interests in any amount of your interest in the Purchased
Receivables as you may deem desirable. You retain the right at any time to
assign all or a part of your rights under this Agreement.
9.2......This Agreement shall be governed by, and construed and
enforced in accordance with the laws of the State of New York.
9.3......Any taxes (excluding income taxes) payable or ruled payable by
any federal or state authority in respect of this Agreement and your purchase of
Approved Receivables shall be paid by us, together with interest and penalties,
if any. We shall reimburse you for any and all out-of-pocket expenses and
internal charges paid or incurred by you in connection with the preparation,
administration, collection or enforcement (including reasonable attorney's fees)
of this Agreement and any amendments hereto, including expenses incurred in
connection with the filing of financial statements, continuation statements and
record searches. We shall also pay you such reasonable wire transfer and similar
fees as you charge from time to time. We hereby agree to indemnify you from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time be imposed on, incurred by or asserted against
you in any way relating to or arising out of this Agreement, the Assignments or
any of the other agreements related hereto or the transactions contemplated
hereby or any action taken or omitted to be taken by us under or in connection
with any of the foregoing; provided, however, that we shall not be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from your gross negligence or willful misconduct as finally determined by
a court of competent jurisdiction or from Credit Risk. The agreements in this
Section 9.3 shall survive the termination of this Agreement.
9.4 No delay or failure on your part in exercising any right,
privilege, or option hereunder shall operate as a waiver of such or of any other
right, privilege, or option, and no waiver, amendment, or modification of any
provision of this Agreement shall be valid, unless in writing signed by you and
then only to the extent therein stated. All rights and remedies existing
hereunder or under any other documents are cumulative to and not exclusive of
any rights or remedies otherwise available. Should any provision of this
Agreement be prohibited by or invalid under applicable law, the validity of the
remaining provisions shall not be affected thereby. Any notices, requests,
demands or other communications given by you under this Agreement may be sent by
mail, delivery or telecopy to our most current address as reflected in your
records. The headings used herein are intended to be for convenience of
reference only and shall not define or limit the scope, extent or intent or
otherwise effect the meaning of any portion hereof.
9.5......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:
Banc of America Commercial Corporation
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: 000-000-0000
Xxxxxx American Receivables, LLC
000 Xxxxx Xxxxxx
xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: 000-000-0000
9.6......This Agreement embodies our entire agreement as to the subject
matter and supersedes all prior agreements as to the subject matter. EACH PARTY
HERETO HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
RELATING TO TRANSACTIONS UNDER THIS AGREEMENT.
Xxxxxx American Receivables, LLC
By:
Name:
Title:
ACCEPTANCE
The foregoing Receivables Purchase Agreement is accepted in the City of
Atlanta, Georgia as of the 12th day of May, 2000.
Banc of America Commercial Corporation
By:
Name:
Title:
ACKNOWLEDGMENT AND AGREEMENT
GREAT AMERICAN KNITTING XXXXX, INC. hereby acknowledges the provisions of
the foregoing Receivables Purchase Agreement and agrees to be bound by and
perform its obligations under Sections 2.3 and 4 thereof.
Great American Knitting Xxxxx, Inc.
Name:
Title:
EXHIBIT A
ASSIGNMENT
FOR VALUE RECEIVED, in accordance with the Receivables
Purchase Agreement dated as of May 12, 2000 (the "Agreement") between the
undersigned and Banc of America Commercial Corporation (the "Buyer"), the
undersigned does hereby sell, assign and transfer effective as of the close of
business on May 11, 2000 to the Buyer and its successors and assigns all right,
title and interest of the undersigned in, to and under each and every Approved
Receivable (as defined in the Agreement) identified in Schedule I attached
hereto and in, to and under all guarantees thereof and collateral security
therefor.
This Assignment is made without recourse to the undersigned
except to the extent otherwise provided in the Agreement, but is made pursuant
to and upon all of the representations, warranties, covenants and agreements
contained in the Agreement.
This Assignment has been delivered to the Buyer by the
undersigned in the State of New York and shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be executed by its duly authorized officer as of this 12th day of May, 2000.
XXXXXX AMERICAN RECEIVABLES, LLC
By:
Name:
Title:
SCHEDULE I TO ASSIGNMENT
Customer Name Invoice Numbers
Belk Xxxxxxx 4292597
4293029-4293338
4295019-4295231
4301264-4301398
4304479-4304571
4310512-4310626
4316134-4316156
4316176-4316256
Total $175,581.12
Boscov's 4291724-4291757
4292499-4292507
4303902-4303943
4305371-4305402
4306708-4306775
4307760-4307793
4311323-4311351
Total $202,411.02
Burlington 4292404-4290477
4297713-4297922
4301007-4301008
4309286
4311799-4311909
Total $32,911.80
Xxxxxx Xxxxx Xxxxx & Co. 4290518-4290567
4294445-4294545
4298644
4299169-4299189
4300311-4300319
4305942-4305946
4307560-4307603
4314601-4314673
4318948-4319117
Total $98,681.55
DHDSC 4287793-4287828
4295232-4295248
4295580-4295621
4304014-4304162
4304572-4304610
4304972-4305119
4306594-4306605
4307696-4307759
4307848-4307883
4310744-4310887
4311146-4311189
4316927-4317046
4317295-4317335
Total $215,999.76
Famous Xxxx Service 4287741-4287750
4291465-4291528
4291947-4291991
4293001-4293028
4295737-4295916
4296727-4296752
4301011-4301031
4301493-4301524
4302564-4302573
4310181-4310211
4310892-4310914
4311493-4311580
4311957-4311966
Total $278,666.34
Filenes 4291000-4291248
4292878-4292921
4296604-4296726
4301399-4301442
4305165-4305184
4307885-4307958
4310140-4310180
4314446-4314517
4317800-4317822
Total $246,258.58
Fingerhut 4298992
4318567
Total $37,953.60
Foleys 4287688-4287740
4292127-4292328
4296890-4296979
4299636-4299710
4301145-4301258
4306225-4306236
4306313-4306336
4307639-4307695
4307959-4307997
4310444-4310511
4312960-4313015
Total $160,510.26
Herbergus 4290216-4290329
4290477-4290516
4299610-4299635
4301566-4301602
4306861
Total $80,963.94
HQ AAFES 4287751-4287792
4287829-4287836
4292525-4292568
4292576-4292585
4294610-4294621
4297033-4297038
4298622
4300304-4300307
4302574
4302576
4305926
4306337-4306342
4306667-4306699
4306707
4306862-4306887
4307794-4307796
4307806-4307834
4310742-4310743
4311968-4311969
4312143-4312145
4314520
4314522
4315859-4315866
4318562
4318575
Total $33,839.80
JC Penney 4305936
4305960
4306000
4306017-4306018
4316071-4316104
4286760-4287279
4287334-4287687
4287837-4288544
4288573-4288590
4288744-4288900
4292480-4292497
4292616-4292868
4292873-4292876
4293526-4294442
4297233-4297699
4297924-4298039
4298672-4298985
4300321-4300980
4301009
4302028-4302475
4302636-4302663
4302675-4302676
4305403-4305618
4305647-4305921
4305959
4305961-4306127
4306904-4306907
4306911-4307070
4308115-4309106
4309267-4309273
4309289-4309329
4309345-4309346
4309348
4309429-4309448
4309456-4309967
4311912-4311925
4312044-4312138
4312142
4312146-4312251
4315146-4315641
4315672-4315853
4315983-4316047
4318576-4318872
4318904
4318906-4318908
4319147-4320086
4320123-4320217
Total $1,284,741.40
Kmart 4299712-4300153
4302690-4303209
4303211-4303790
4310230-4310440
4312348-4312447
4312541-4312679
4312680-4312959
4313017-4314444
Total $457,543.14
Kaufmanns 4290026-4290171
4295249-4295575
4299475-4299524
4301443-4301491
4308036-4308074
4310692-4310741
4315115-4315138
Total $299,770.60
Kohls 4291589-4291592
4308111-4308114
Total $65,106.72
Macys West 4287330-4287333
4290657-4290991
4291709-4291723
4292922-4293000
4296980-4296994
4299167
4305199-4305273
4305299-4305370
4311352-4311492
4317336-4317340
4317466-4317577
Total $366,384.12
Mamaxx Group/Marshalls 4287280
4299001
4299003
4299166
4305619-4305620
4306312
4318570
Total $536,311.24
Mamaxx/TJ Maxx 4298993-4299609
4301259-4301263
4306310-4306311
4314173-4314176
Total $315,713.00
McRaes Inc. 4299453-4299474
4306129-4306223
43147254314768
4316107-4316133
Total $32,319.54
Xxxxx & Xxxxx 4288546-4288554
4290173-4290210
4291760-4291783
4292350-4292361
4298625-4298641
4300260-4300299
4304449-4304478
4308075-4308082
4309107-4309111
4310212-4310228
4311781-4311794
4315099-4315114
4315139-4315144
4318873-4318891
4319118-4319135
Total $104,806.28
Rich's 4287281-4287329
4288642-4288715
4290440-4290476
4291645-4291708
4295623-4295736
4296286-4296292
4299525-4299564
4303819-4303884
4316157-4316175
4317675-4317796
4318914-4310946
Total $249,655.56
Robinsons/May 4290399-4290438
4291249-4291318
4296293-4296390
4300154-4300259
4301092-4301144
4310628-4310691
4311190-4311322
4317941-4317991
Total $119,917.80
Xxxxxx 4288592-4288641
4291784-4291876
4294546-4294570
4294861-4294978
4305185-4305197
4306244-4306258
4311698-4311722
4312253-4312274
4315074-4315098
4317823-4317880
Total $148,669.80
Xxxx Stores 4286755-4286759
4290213
4298987-4298991
4300300-4300301
4304164-4304165
4306308-4306309
4314518-4314519
Total $321,863.64
The Bon Ton Stores 4288723-4288743
4289879-4290025
4299005-4299165
4303945-4304013
4314912-4314982
4314991-4315011
4315013-4315039
4315041-4315073
4316052
4316054-4316070
4319137-4319146
Total $129,655.86
The Xxxxx Co. 4291868-4291914
4292055-4292126
4292331-4292345
4296753-4296889
4298040-4298258
4298397-4299384
4299565-4299605
4300984-4300990
4307998-4308035
4308083-4308110
4314777-4314910
4318464-4318513
Total $344,301.18
EXHIBIT B
Chief Executive Office, Principal Place of Business and
Location of Books and Records with Respect to Receivables
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
