Exhibit 10.71
FIRST AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
dated as of October 31, 2001
by and between
WESTPOINT XXXXXXX INC.,
as Seller and as Servicer
and
WPS RECEIVABLES CORPORATION,
as Purchaser
TABLE OF CONTENTS
Page
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ARTICLE I AGREEMENT TO PURCHASE AND SELL........................................................2
SECTION 1.1 Agreement to Purchase and Sell................................................2
SECTION 1.2 Timing of Purchases...........................................................3
SECTION 1.3 Consideration for Purchases...................................................3
SECTION 1.4 No Recourse...................................................................3
SECTION 1.5 No Assumption of Obligations Relating to Receivables,
Related Assets or Contracts.............................................4
SECTION 1.6 True Sales....................................................................4
SECTION 1.7 Savings Clause................................................................4
SECTION 1.8 Addition of Sellers...........................................................5
SECTION 1.9 Termination of Status as a Seller.............................................5
ARTICLE II CALCULATION OF PURCHASE PRICE........................................................6
SECTION 2.1 Calculation of Purchase Price.................................................6
SECTION 2.2 Definitions and Calculations Related to Purchase Price Percentage.............7
ARTICLE III PAYMENT OF PURCHASE PRICE; SERVICING, ETC..........................................8
SECTION 3.1 Purchase Price Payments.......................................................8
SECTION 3.2 The WPS Xxxxx Note...........................................................10
SECTION 3.3 Application of Collections and Other Funds...................................11
SECTION 3.4 Servicing of Receivables and Related Assets..................................11
SECTION 3.5 Payments and Computations, Etc...............................................11
ARTICLE IV CONDITIONS TO PURCHASES............................................................12
SECTION 4.1 Conditions Precedent to Initial Purchase.....................................12
SECTION 4.2 Certification as to Representations and Warranties...........................13
SECTION 4.3 Effect of Payment of Purchase Price..........................................13
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................................13
SECTION 5.1 Representations and Warranties of Seller.....................................13
SECTION 5.2 Representations and Warranties of WPS Xxxxx..................................21
ARTICLE VI GENERAL COVENANTS OF SELLER........................................................21
SECTION 6.1 Affirmative Covenants........................................................21
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Page
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SECTION 6.2 Reporting Requirements.......................................................25
SECTION 6.3 Negative Covenants...........................................................28
ARTICLE VII ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT
OF THE TRANSFERRED ASSETS..........................................................31
SECTION 7.1 Rights of WPS Xxxxx..........................................................31
SECTION 7.2 Responsibilities of Seller...................................................32
SECTION 7.3 Further Action Evidencing Purchases..........................................32
SECTION 7.4 Collection of Receivables; Rights of WPS Xxxxx and Its
Assignees.............................................................34
ARTICLE VIII TERMINATION.......................................................................35
SECTION 8.1 Termination by Seller........................................................35
SECTION 8.2 Automatic Termination........................................................35
ARTICLE IX INDEMNIFICATION.....................................................................35
SECTION 9.1 Indemnities by Seller........................................................35
SECTION 9.2. Contribution................................................................38
ARTICLE X MISCELLANEOUS........................................................................38
SECTION 10.1 Amendments; Waivers, Etc....................................................38
SECTION 10.2 Notices, Etc................................................................39
SECTION 10.3 Cumulative Remedies.........................................................39
SECTION 10.4 Binding Effect; Assignability; Survival of Provisions.......................39
SECTION 10.5 Governing Law...............................................................40
SECTION 10.6 Costs, Expenses and Taxes...................................................40
SECTION 10.7 Consent to Jurisdiction; Waiver of Immunities...............................40
SECTION 10.8 Waiver of Jury Trial........................................................41
SECTION 10.9 Integration.................................................................42
SECTION 10.10 Execution in Counterparts..................................................42
SECTION 10.11 Acknowledgment and Consent.................................................42
SECTION 10.12 No Partnership or Joint Venture............................................43
SECTION 10.13 No Proceedings.............................................................43
SECTION 10.14 Severability of Provisions.................................................43
SECTION 10.15 Recourse to WPS Xxxxx......................................................44
SECTION 10.16 Confirmation and Ratification of Terms.....................................44
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ATTACHMENTS
EXHIBIT 3.2 Form of WPS Xxxxx Note
SCHEDULE 5.1(f) Litigation and Other Proceedings
SCHEDULE 5.1(n) Offices of the Sellers where Records are Maintained
SCHEDULE 5.1(o) Lock-Box Banks and Accounts
SCHEDULE 5.1(q) Legal Names
APPENDIX A Definitions
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THIS FIRST AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT (this "Purchase Agreement"), dated as of October 31, 2001, is made by
and between WestPoint Xxxxxxx Inc., a Delaware corporation ("WestPoint Xxxxxxx"
or "Seller"), WestPoint Xxxxxxx, as Servicer and WPS Receivables Corporation, a
Delaware corporation ("WPS Xxxxx"). Except as otherwise specifically provided
herein, capitalized terms used in this Purchase Agreement have the meanings
ascribed to such terms in Appendix A hereto, and this Purchase Agreement shall
be interpreted in accordance with the conventions set forth in Parts B, C and D
of Appendix A.
W I T N E S S E T H
WHEREAS, Seller and WPS Xxxxx entered into a Receivables
Purchase Agreement, dated as of December 18, 1998 (as amended, the "Original
Purchase Agreement"), pursuant to which Seller agreed to sell Receivables that
it owned on December 18, 1998 and from time to time thereafter owned, to WPS
Xxxxx, and WPS Xxxxx agreed to purchase such Receivables from Seller from time
to time;
WHEREAS, WPS Xxxxx continues to own all Receivables
outstanding as of the close of business on October 31, 2001 and conveyed
pursuant to the Original Purchase Agreement (such Receivables, the "Previously
Transferred Receivables");
WHEREAS, the parties hereto have agreed to amend and restate
the Original Purchase Agreement in its entirety, subject to the terms and
conditions hereof;
WHEREAS, WPS Xxxxx, as Transferor, Seller, as initial
Servicer, Blue Ridge Asset Funding Corporation, as Transferee ("Blue Ridge"),
and Wachovia Bank, N.A., as Administrator (the "Administrator"), entered into an
Asset Interest Transfer Agreement, dated as of December 18, 1998 (as amended,
the "Original AITA"), pursuant to which WPS Xxxxx agreed to sell Receivables
that it owned on December 18, 1998 and from time to time thereafter owned, to
Blue Ridge, and Blue Ridge agreed to purchase such Receivables from WPS Xxxxx
from time to time; and
WHEREAS, concurrent with the execution of this Purchase
Agreement, WPS Xxxxx, as Transferor, Seller, as initial Servicer, Blue Ridge,
North American Capacity Insurance Company, as Insurer (the "Insurer"), and the
Adminis-
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trator, are entering into a First Amended and Restated Asset Interest Transfer
Agreement (the "Amended and Restated AITA"), pursuant to which the parties
thereto agree to amend and restate the Original AITA, in its entirety, subject
to the terms and conditions thereof.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
AGREEMENT TO PURCHASE AND SELL
SECTION 1.1 Agreement to Purchase and Sell. On the terms and
subject to the conditions set forth in this Purchase Agreement (including the
conditions to purchases set forth in Article IV), Seller agrees to sell,
transfer, assign, set over and otherwise convey, and does hereby sell, to WPS
Xxxxx, and WPS Xxxxx agrees to purchase, and does hereby purchase, from Seller,
at the times set forth in Section 1.2, all of Seller's right, title and interest
in, to and under:
(a) each Receivable of Seller that exists and is owing to
Seller as at the closing of Seller's business on the
Effective Date (other than the Previously Transferred
Receivables),
(b) each Receivable created by Seller that arises during
the period from and including the closing of Seller's
business on the Effective Date but excluding the
Purchase Termination Date,
(c) all Related Security with respect to all Receivables
described above,
(d) all proceeds of the foregoing, including all funds
received by any Person in payment of any amounts owed
(including invoice prices, finance charges, interest
and all other charges, if any) in respect of any
Receivable described above or Related Security with
respect to any such Receivable, or otherwise applied
to repay or discharge any such Receivable (including
insurance payments that Seller or the Servicer
applies in the ordinary course of its business to
amounts owed in respect of
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any such Receivable (it being understood that
property insurance covering inventory is not so
applied and is not included in this grant) and net
proceeds of sale or other disposition of repossessed
goods that were the subject of any such Receivable)
or other collateral or property of any Obligor or any
other party directly or indirectly liable for payment
of such Receivables), and
(e) all Records relating to any of the foregoing;
provided that the Seller shall be entitled to retain
duplicates of such Records.
As used herein, (i) "Purchased Receivables" means the items
listed above in clauses (a) and (b) and the Previously Transferred Receivables;
(ii) "Related Assets" means the items listed above in clauses (c), (d) and (e);
and (iii) "Transferred Assets" means the Purchased Receivables and the Related
Assets.
SECTION 1.2 Timing of Purchases.
(a) Effective Date Purchases. All of the Transferred
Assets of Seller, other than the Previously Transferred Receivables (which have
been previously transferred to WPS Xxxxx) existing at the closing of its
business on the Effective Date automatically (and without further action by any
Person) shall be sold to WPS Xxxxx on the Effective Date.
(b) Regular Purchases. Except to the extent otherwise
provided in Section 8.2, after the closing of Seller's business on the Effective
Date until the closing of Seller's business on the Business Day immediately
preceding the Purchase Termination Date, each Receivable and the Related Assets
of Seller shall be deemed to have been sold to WPS Xxxxx pursuant hereto
immediately (and without further action by any Person) upon the creation of such
Receivable.
SECTION 1.3 Consideration for Purchases. On the terms and
subject to the conditions set forth in this Purchase Agreement, WPS Xxxxx agrees
to make Purchase Price payments to Seller in accordance with Article III.
SECTION 1.4 No Recourse. Except as specifically provided in
this Purchase Agreement, the sale and purchase of Transferred Assets under this
Purchase Agreement shall be without recourse to Seller; it being understood that
Seller shall be liable to WPS Xxxxx for all representations, warranties,
covenants and indemnities
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made by Seller pursuant to the terms of this Purchase Agreement, all of which
obligations are limited so as not to constitute recourse to Seller for the
credit risk of the Obligors.
SECTION 1.5 No Assumption of Obligations Relating to
Receivables, Related Assets or Contracts. Neither WPS Xxxxx, nor the Servicer,
nor any of their respective assigns, shall have any obligation or liability to
any Obligor or other customer or client of Seller (including any obligation to
perform any of the obligations of Seller under any Receivable, related Contracts
or any other related purchase orders or other agreements). No such obligation or
liability is intended to be assumed hereunder by WPS Xxxxx, the Servicer, or any
of their respective assigns, and any such assumption is expressly disclaimed.
SECTION 1.6 True Sales. Seller and WPS Xxxxx intend the
transfers of Receivables hereunder to be true sales by Seller to WPS Xxxxx that
are absolute and irrevocable and that provide WPS Xxxxx with the full benefits
of ownership of the Receivables, and neither Seller nor WPS Xxxxx intends the
transactions contemplated hereunder to be, or for any purpose to be
characterized as, loans from WPS Xxxxx to Seller.
SECTION 1.7 Savings Clause.
If, notwithstanding the intention of the parties expressed in
Section 1.6 above, the conveyance by Seller to WPS Xxxxx of Receivables
hereunder shall be characterized as a secured loan and not a sale, this Purchase
Agreement shall constitute a security agreement under the UCC and other
applicable law. For this purpose, Seller hereby grants WPS Xxxxx a duly
perfected, first priority security interest in all of Seller's right, title and
interest in, to and under the Receivables and the Related Security with respect
thereto, this Purchase Agreement and all proceeds of any thereof, to secure the
timely payment and performance by Seller of all amounts owing to WPS Xxxxx
hereunder and any other obligations owing to WPS Xxxxx hereunder. In the event
this Purchase Agreement shall be characterized as a security agreement and upon
a default by Seller hereunder, WPS Xxxxx and its assignees shall have, in
addition to the rights and remedies which they may have under this Purchase
Agreement, all other rights and remedies provided to a secured creditor after
default under the UCC and other applicable law, which rights and remedies shall
be cumulative.
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SECTION 1.8 Addition of Sellers. Any Subsidiary of WestPoint
Xxxxxxx may become an additional Seller hereunder and sell its accounts
receivable and property of the types that constitute Receivables and Related
Assets hereunder to WPS Xxxxx if the Administrator (on behalf of the Secured
Parties) consents to such addition. WestPoint Xxxxxxx and its Subsidiary that is
proposed to be added as a Seller shall give to WPS Xxxxx and the Administrator
no less than forty-five days' prior written notice of the effective date of the
addition of such Subsidiary as a Seller, and such Subsidiary shall provide the
Administrator (on behalf of the Secured Parties) with reasonable access to its
officers and to its books, records and accounting systems to enable the
Administrator to conduct a due diligence review of the accounts receivable and
accounting systems of such Subsidiary. Upon the Administrator granting its
consent to the proposed addition, such addition shall become effective on the
first Business Day following the date on which the Subsidiary and the parties
hereto shall have executed and delivered such agreements, instruments and other
documents and such amendments or other modifications to the Transaction
Documents, in form and substance reasonably satisfactory to WPS Xxxxx, the
Insurer and the Administrator, that WPS Xxxxx, the Insurer or the Administrator
reasonably determines are necessary or appropriate to effect such addition.
SECTION 1.9 Termination of Status as a Seller. (a) At any time
when more than one Person is a Seller, a Seller (other than WestPoint Xxxxxxx)
may terminate its obligation to sell its Receivables and Related Assets to WPS
Xxxxx if:
(i) such Seller (a "Terminating Seller") shall have given
WPS Xxxxx no less than thirty days' prior written
notice of such Seller's intention to terminate such
obligations;
(ii) an Authorized Officer of the Terminating Seller shall
have certified that the termination by the
Terminating Seller of its status as a Seller will not
have a Material Adverse Effect; and
(iii) both immediately before and after giving effect to
such termination by the Terminating Seller, no
Liquidation Event or Unmatured Liquidation Event
shall have occurred and be continuing or shall
reasonably be expected to occur.
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Any termination by a Seller pursuant to this Section 1.9(a)
shall become effective on the first Business Day that follows the day on which
the requirements of foregoing clauses (a)(i) through (iii) shall have been
satisfied (or such later date specified in the notice or certificate referred to
in such clauses). Any termination by a Seller pursuant to this Section 1.9(a)
shall terminate such Seller's right and obligation to sell Receivables and
Related Assets hereunder to WPS Xxxxx and WPS Xxxxx'x agreement, with respect to
such Seller, to purchase such Receivables and Related Assets; provided, however,
that such termination shall not relieve such Seller of any of its other
Obligations, to the extent such Obligations relate to Receivables (and Related
Assets with respect thereto) originated by such Seller prior to the effective
date of such termination.
(b) The right and obligation of a Seller (other than
WestPoint Xxxxxxx) to sell its Receivables and Related Assets to WPS Xxxxx shall
terminate immediately if such Seller ceases to be a Subsidiary of WestPoint
Xxxxxxx; provided, however, that such termination shall not relieve such Seller
of any of its other Obligations, to the extent such Obligations relate to
Receivables (and Related Assets with respect thereto) originated by such Seller
prior to the effective date of such termination.
ARTICLE II
CALCULATION OF PURCHASE PRICE
SECTION 2.1 Calculation of Purchase Price. On the Effective
Date, and thereafter on each Reporting Date, the Servicer shall deliver to WPS
Xxxxx, the Administrator and Seller, a Monthly Report with respect to WPS
Xxxxx'x purchases of Receivables from Seller
(i) that are to be made on the Effective Date
(in the case of the Monthly Report to be delivered on the Effective
Date) or
(ii) that were made in the immediately preceding
Reporting Period (in the case of each subsequent Monthly Report).
In addition, upon 30 days prior notice, the Administrator may
require the Servicer to deliver Interim Reports with respect to WPS Xxxxx'x
purchase of Receivables from Seller since the date of the most recent Monthly
Report or Interim Report, provided that Servicer shall not be required to
deliver Interim Reports more
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frequently than weekly. On each day when Receivables are purchased by WPS Xxxxx
from Seller pursuant to Article I hereof, the "Purchase Price" to be paid to
Seller on such day (in the case of the Effective Date), or on the next Business
Day for the Receivables and Related Assets that are to be sold by Seller on such
day, shall be determined in accordance with the following formula:
PP = AUB x PPP
where:
PP = the aggregate Purchase Price for the Receivables and
Related Assets purchased from Seller on such day,
AUB = the "Aggregate Unpaid Balance" of the Receivables
that are to be purchased from Seller on such day. For
purposes of this calculation, "Aggregate Unpaid
Balance" shall mean (i) for purposes of calculating
the Purchase Price to be paid to Seller on the
Effective Date, the sum of the Unpaid Balances of
each Receivable generated by Seller, as measured as
at the closing of Seller's business on the Effective
Date, and (ii) for purposes of calculating the
Purchase Price to be paid to Seller on each Business
Day thereafter, the sum of the Unpaid Balances of
each Receivable to be purchased from Seller on such
day, calculated at the time of such Receivable's
generation and sale to WPS Xxxxx,
PPP = the Purchase Price Percentage applicable to the
Receivables purchased from Seller on such day, as
determined pursuant to Section 2.2.
SECTION 2.2 Definitions and Calculations Related to Purchase
Price Percentage.
(a) "Purchase Price Percentage" for the Receivables to be
sold by Seller on any day shall mean the percentage determined in accordance
with the following formula:
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PPP = 100% - PD
where:
PPP = the Purchase Price Percentage in effect on such day
PD = the Purchase Discount (expressed as a percentage)
shall mean for any day, an amount, calculated in good
faith by the Purchaser, equal to the product of (A)
the sum of (x) the A1-P1 asset backed commercial
paper rate for a maturity most closely corresponding
to the estimated maturity period of the Receivables,
and (y) the greater of (1) 0.25% or (2) the Loss
Reserve, and (B) a fraction the numerator of which is
the estimated maturity period of the Receivables and
the denominator of which is 360, determined pursuant
to paragraph (b) below.
(b) The Purchase Price Percentage and the Purchase
Discount shall be recomputed by the Servicer on each Reporting Date, in each
case for the then most recent ended Reporting Period, and such recomputed
amounts shall be used for purposes of calculating the Purchase Price payable to
Seller for Receivables sold to WPS Xxxxx through the next Reporting Date.
ARTICLE III
PAYMENT OF PURCHASE PRICE; SERVICING, ETC.
SECTION 3.1 Purchase Price Payments.
(a) On the Effective Date and on the Business Day
following each day on which any Receivables are purchased from Seller by WPS
Xxxxx pursuant to Article I hereof, on the terms and subject to the conditions
of this Purchase Agreement, WPS Xxxxx shall pay to Seller the Purchase Price for
the Receivables and Related Assets purchased on such day, by WPS Xxxxx from
Seller by (i) making a cash payment to Seller to the extent that WPS Xxxxx has
cash available to make such payment pursuant to Section 3.3 and (ii)
automatically increasing the principal amount outstanding under Seller's WPS
Xxxxx Note by the amount of the excess of the Purchase Price to be paid to
Seller for such Receivables and Related Assets over the amount of any cash
payment made on such day to Seller.
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(b) Non-Complying Receivables and Dilution Adjustment. If
on any day
(i) the Unpaid Balance of any Receivable sold to
WPS Xxxxx by Seller is:
(A) reduced as a result of any defective,
rejected or returned merchandise or
services, any cash discount, incorrect
xxxxxxxx, price rollbacks, freight charge
discrepancies or any other adjustment by
Seller or any Affiliate thereof, or as a
result of any tariff or other governmental
or regulatory action, or
(B) reduced or canceled as a result of a setoff
in respect of any claim by the Obligor
thereof (whether such claim arises out of
the same or a related or an unrelated
transaction), or
(C) reduced on account of the obligation of
Seller or any Affiliate thereof to pay to
the related Obligor any rebate or refund, or
(D) less than the amount reported in the
applicable Monthly Report (for any reason
other than such Receivable being paid by the
Obligor thereof or becoming a Defaulted
Receivable), or
(ii) the representations and warranties made by
Seller in Section 5.1(k) with respect to such Receivable were not true when
made,
then, the Purchase Price payable to Seller on the next Business Day or Days
shall be reduced as follows (such reduction, a "Non-Complying Receivables and
Dilution Adjustment"):
(A) in the case of clause (i) above, in the
amount of such reduction or cancellation or
the difference between the actual Unpaid
Balance and the amount reported in the
applicable Monthly Report, as applicable;
and
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(B) in the case of clause (ii) above, in the
amount of the Unpaid Balance of such
Receivable.
(c) If, on any day on or after the Purchase Termination
Date, there is a positive Noncomplying Receivables and Dilution Adjustment and
the principal amount of the WPS Xxxxx Note has been reduced to zero (or Seller
no longer holds the WPS Xxxxx Note), Seller shall pay to WPS Xxxxx in cash the
amount of such Noncomplying Receivables and Dilution Adjustment on the next
succeeding Business Day.
SECTION 3.2 The WPS Xxxxx Note.
(a) Pursuant to the Original Purchase Agreement, WPS
Xxxxx delivered to Seller a promissory note, substantially in the form of
Exhibit 3.2, payable to the order of Seller (such promissory note, as the same
may be amended, supplemented, endorsed or otherwise modified from time to time,
together with any promissory note issued from time to time in substitution
therefor or renewal thereof in accordance with the Transaction Documents, the
"WPS Xxxxx Note"), which WPS Xxxxx Note is subordinated to all payments arising
under or in connection with the Original AITA or the Amended and Restated AITA.
The WPS Xxxxx Note is payable in full on the date that is eighteen months after
the Final Payout Date under the Original AITA. The WPS Xxxxx Note bears interest
at a rate per annum equal to the Prime Rate in effect on the most recent
Reporting Date. WPS Xxxxx may prepay all or part of the outstanding balance of
the WPS Xxxxx Note from time to time without any premium or penalty, unless such
prepayment would result in a default in WPS Xxxxx'x payment of any other amount
required to be paid by it under any Transaction Document. Notwithstanding the
restatement of the Original Purchase Agreement and the Original AITA, the WPS
Note continues in full force and effect and continues to be subject to the
provisions of this Purchase Agreement and the Amended and Restated AITA.
(b) The Servicer shall hold the WPS Xxxxx Note for the
benefit of Seller, and shall make all appropriate recordkeeping entries with
respect to the WPS Xxxxx Note or otherwise to reflect the payments on and
adjustments thereto. The Servicer's books and records shall constitute
rebuttable presumptive evidence of the principal amount of and accrued interest
on the WPS Xxxxx Note at any time. Seller hereby irrevocably authorizes the
Servicer to xxxx the WPS Xxxxx Note "CANCELLED" and to return the WPS Xxxxx Note
to WPS Xxxxx upon the final payment thereof.
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SECTION 3.3 Application of Collections and Other Funds. If, on
any day, WPS Xxxxx receives (a) Collections that it is not required to hold in
trust for, or remit to, the Servicer or the Administrator pursuant to the
Amended and Restated AITA or (b) proceeds or transfers pursuant to the Amended
and Restated AITA, WPS Xxxxx shall apply such funds as follows:
(i) first, to pay its existing expenses and to
set aside funds for the payment of expenses that are then accrued;
(ii) second, to pay the Purchase Price pursuant
to Section 3.1 for Receivables and Related Assets purchased by WPS
Xxxxx from Seller on the Effective Date or in the applicable Reporting
Period, as the case may be;
(iii) third, to repay amounts owed by WPS Xxxxx to
Seller under the WPS Xxxxx Note; and
(iv) fourth, to declare and pay dividends to
Seller to the extent permitted by law.
SECTION 3.4 Servicing of Receivables and Related Assets.
Consistent with WPS Xxxxx'x ownership, as between the parties to this Purchase
Agreement, of the Receivables and the Related Assets, WPS Xxxxx shall have the
sole right to service, administer and collect the Receivables, to assign such
right and to delegate such right to others. Without limiting the generality of
Section 10.11, Seller hereby acknowledges and agrees that WPS Xxxxx shall assign
to the Administrator (for the benefit of the Secured Parties) the rights and
interests granted by Seller to WPS Xxxxx hereunder and agrees to cooperate fully
with the Servicer and the Administrator in the exercise of such rights. As more
fully described in Section 7.4(b) hereof and in the Amended and Restated AITA,
the Administrator may only exercise such rights in the place of WPS Xxxxx (as
assignee or otherwise) following the designation of a Servicer other than
WestPoint Xxxxxxx pursuant to Section 8.01 of the Amended or Restated AITA or
upon the occurrence and during the continuance of a Liquidation Event.
SECTION 3.5 Payments and Computations, Etc. All amounts to be
paid by Seller to WPS Xxxxx hereunder shall be paid in accordance with the terms
hereof no later than 2:00 p.m. (New York time) on the day when due in Dollars in
immediately available funds to an account that WPS Xxxxx shall from time to time
specify in writing. Payments received by WPS Xxxxx after such time shall be
deemed to have been received on the next Business Day. In the event that any
payment becomes due on a day which is
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not a Business Day, then such payment shall be made on the next succeeding
Business Day. Seller shall, to the extent permitted by law, pay to WPS Xxxxx, on
demand, interest on all amounts not paid when due hereunder at 1.0% per annum
above the interest rate on the WPS Xxxxx Note in effect on the date such payment
was due; provided, however, that such interest rate shall not at any time exceed
the maximum rate permitted by applicable law. All computations of interest
payable hereunder shall be made on the basis of a year of 360 days for the
actual number of days (including the first but excluding the last day) elapsed.
ARTICLE IV
CONDITIONS TO PURCHASES
SECTION 4.1 Conditions Precedent to Initial Purchase. The
effectiveness of this Purchase Agreement is subject to the conditions precedent
that (i) each of the conditions precedent to the execution, delivery and
effectiveness of the Amended and Restated AITA, the Insurance Policy, and each
other Transaction Document to be executed on the Effective Date (other than a
condition precedent in any such other Transaction Document relating to the
effectiveness of this Purchase Agreement) shall have been fulfilled to the
satisfaction of WPS Xxxxx, and (ii) WPS Xxxxx shall have received (or in the
case of subsection (i) below, shall have delivered) each of the following, on or
before the Effective Date, each (unless otherwise indicated) dated the Effective
Date and each in form and substance satisfactory to WPS Xxxxx:
(a) Resolutions. A copy of the resolutions of
the Board of Directors of Seller approving this Purchase Agreement and
the other Transaction Documents to be delivered by Seller hereunder and
the transactions contemplated hereby and thereby and addressing such
other matters as may be required by WPS Xxxxx, certified by its
Secretary or Assistant Secretary, each as of a recent date acceptable
to WPS Xxxxx;
(b) Good Standing Certificate of Seller;
Certificates as to Foreign Qualification of Seller. A good standing
certificate for Seller, issued by the Secretary of State of Delaware
and of each state in which Seller transacts business, is required to be
in good standing and where the failure to be in good standing could
materially and adversely affect the condition (financial or otherwise),
properties, business or results of operations of Seller, each dated as
of a recent date;
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(c) Incumbency Certificate. A certificate of the
Secretary or Assistant Secretary of Seller certifying, as of the date
of this Purchase Agreement, the names and true signatures of the
officers authorized on Seller's behalf to sign this Purchase Agreement
and the other Transaction Documents to be delivered by Seller
hereunder;
(d) Other Transaction Documents. Original
copies, executed by each of the parties thereto in such reasonable
number as shall be specified by WPS Xxxxx, of each of the other
Transaction Documents to be executed and delivered in connection
herewith; and
(e) Opinions of Counsel. The following opinions
of counsel each in form and substance satisfactory to WPS Xxxxx:
opinions of Xxxxxxxxxx, Xxxxxx & Xxxxxxx, special New York counsel to
Seller as to enforceability and UCC validity matters and true sale and
non-consolidation.
SECTION 4.2 Certification as to Representations and
Warranties. Seller, by accepting the Purchase Price paid for each purchase of
Receivables generated by Seller and the Related Assets of Seller, shall be
deemed to have certified, with respect to the Receivables and Related Assets to
be sold by it on such day, that its representations and warranties contained in
Article V (excluding, with respect to any day after the Effective Date, Section
5.1(i)) are true and correct on and as of such day, with the same effect as
though made on and as of such day.
SECTION 4.3 Effect of Payment of Purchase Price. Upon the
payment of the Purchase Price (whether in cash or by an increase in the WPS
Xxxxx Note pursuant to Section 3.1) for any Purchase, title to the Receivables
and the Related Assets included in such Purchase shall rest in WPS Xxxxx,
whether or not the conditions precedent to such Purchase were in fact satisfied;
provided, however, that WPS Xxxxx shall not be deemed to have waived any claim
it may have under this Purchase Agreement for the failure by Seller in fact to
satisfy any such condition precedent.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 Representations and Warranties of Seller. In order
to induce WPS Xxxxx to enter into this Purchase Agreement and to make purchases
hereun-
13
der, Seller hereby makes the representations and warranties set forth in this
Section 5.1 at the times and to the extent set forth in Section 4.2.
(a) Organization and Good Standing. Seller is a
corporation duly organized and validly existing in good standing under
the laws of the State of Delaware and has full power and authority to
own its properties and to conduct its business as such properties are
presently owned and such business is presently conducted. Seller had at
all relevant times, and now has, all necessary power, authority, and
legal right to own and sell the Receivables and the Related Assets.
(b) Due Qualification. Seller is duly qualified
to do business and is in good standing as a foreign corporation (or is
exempt from such requirement), and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires such qualification,
licenses or approvals and where the failure so to qualify, to obtain
such licenses and approvals or to preserve and maintain such
qualification, licenses or approvals could reasonably be expected to
have a Material Adverse Effect.
(c) Power and Authority; Due Authorization.
Seller has (i) all necessary corporate power and authority to (A)
execute and deliver this Purchase Agreement and the other Transaction
Documents to which it is a party, (B) perform its obligations under
this Purchase Agreement and the other Transaction Documents to which it
is a party, and (C) sell and assign Receivables and the Related Assets
on the terms and subject to the conditions herein and therein provided,
(ii) duly authorized by all necessary corporate action such sale and
assignment and the execution, delivery, and performance of this
Purchase Agreement and the other Transaction Documents to which it is a
party and the consummation of the transactions provided for in this
Purchase Agreement and the other Transaction Documents to which it is a
party and (iii) duly executed and delivered this Purchase Agreement and
each other Transaction Document to which it is a party.
(d) Valid Sale; Binding Obligations. Each sale
made by Seller pursuant to this Purchase Agreement constitutes a valid
sale, transfer, and assignment of all of Seller's right, title and
interest in, to and under the Receivables and the Related Assets of
Seller to WPS Xxxxx which is perfected and of first priority under the
UCC and otherwise, enforceable against creditors of, and purchasers
from, Seller and free and clear of any Adverse Claim (other than any
Adverse
14
Claim arising solely as a result of any action taken by WPS Xxxxx
hereunder (or by the Administrator on behalf of the Secured Parties
under the Amended and Restated AITA); and this Purchase Agreement
constitutes, and each other Transaction Document to which Seller is a
party constitutes, a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(e) No Conflict or Violation. The execution,
delivery and performance of, and the consummation of the transactions
contemplated by, this Purchase Agreement and the other Transaction
Documents to be signed by Seller and the fulfillment of the terms
hereof and thereof will not (i) 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, (A) the
Certificate of Incorporation or the Bylaws of Seller or (B) any
indenture, loan agreement, receivables purchase agreement, mortgage,
deed of trust, or other material agreement or instrument to which
Seller is a party or by which it or any of its properties is bound,
(ii) result in the creation or imposition of any Adverse Claim upon any
of the Receivables or Related Assets other than pursuant to this
Purchase Agreement and the other Transaction Documents, or (iii)
conflict with or violate any federal, state, local or foreign law or
any decision, decree, order, rule, or regulation applicable to Seller
or any of its properties of any court or of any federal, state, local
or foreign regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over Seller or any of
its properties, which conflict, violation, breach or default,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(f) Litigation and Other Proceedings. Except as
described in Schedule 5.1(f) (as Schedule 5.1(f) may be amended or
supplemented from time to time pursuant to Section 6.2(e)), (i) there
is no action, suit, proceeding or investigation pending or, to the best
knowledge of Seller, threatened against Seller before any court,
regulatory body, arbitrator, administrative agency, or other tribunal
or governmental instrumentality and (ii) Seller is not subject to any
order, judgment, decree, injunction, stipulation or consent order of or
with any court or other government authority, that, in the case of each
of the foregoing clauses (i) and (ii), (A) asserts the invalidity of
this Purchase Agreement or any other Transaction Document, (B) seeks to
prevent the sale of any Receivables or
15
Related Assets by Seller to WPS Xxxxx, or the consummation of any of
the transactions contemplated by this Purchase Agreement or any other
Transaction Document (C) seeks any determination or ruling that would
materially and adversely affect the performance by Seller of its
obligations under this Purchase Agreement or any other Transaction
Document or the validity or enforceability of this Purchase Agreement
or any other Transaction Document, (D) seeks to affect adversely the
income tax attributes of the purchases hereunder or the Seller
Assignment Certificate, in the case of each of the foregoing whether
under the United States federal income tax system or any state income
tax system, or (E) individually or in the aggregate for all such
actions, suits, proceedings and investigations, could reasonably be
expected to have a Material Adverse Effect.
(g) Bulk Sales Act. No transaction contemplated
by this Purchase Agreement or any other Transaction Document requires
compliance with, or will be subject to avoidance under, any bulk sales
act or similar law.
(h) Government Approvals. All authorizations,
consents, orders and approvals of, or other action by, any Governmental
Authority that are required to be obtained by Seller, and all notices
to and filings with any Governmental Authority that are required to be
made by Seller, in the case of each of the foregoing in connection with
the conveyance of Receivables and Related Assets or the due execution,
delivery and performance by Seller of this Purchase Agreement or any
other Transaction Document to which it is a party, and the consummation
of the transactions contemplated by this Purchase Agreement, have been
obtained or made and are in full force and effect, except where the
failure to obtain or to make any such authorization, consent, order,
approval, notice or filing, individually or in the aggregate for all
such failures, could not reasonably be expected to have a Material
Adverse Effect.
(i) Financial Condition. WestPoint Xxxxxxx Inc.
hereby represents that its consolidated balance sheets as at December
31, 1997, and the related statements of income and shareholders' equity
of WestPoint Xxxxxxx Inc. and its Consolidated Subsidiaries for the
fiscal year then ended certified by, Ernst & Young, LLP, independent
certified public accountants, copies of which have been furnished to
WPS Xxxxx, fairly present the consolidated financial condition and
business of WestPoint Xxxxxxx Inc. and its Consolidated Subsidiaries as
at such date and the consolidated results of the operations of
WestPoint Xxxxxxx and its Consolidated Subsidiaries for the period
ended on such date, all in accordance with GAAP consistently applied
throughout the periods reflected therein, and
16
since December 31, 1997 through the date of this Purchase Agreement
there has been no material adverse change in the condition (financial
or otherwise), business or operations of Seller;
(j) Margin Regulations. No funds obtained by
Seller under this Purchase Agreement will be used (i) for a purpose
that violates or will conflict with or contravene any of Regulations T,
U and X promulgated by the Board of Governors of the Federal Reserve
System from time to time or (ii) to acquire any security in any
transaction that is subject to Section 13 or 14 of the Securities
Exchange Act of 1934, as amended.
(k) Quality of Title.
(i) Immediately before each purchase to
be made by WPS Xxxxx hereunder, each Receivable and Related
Asset of Seller which is then to be transferred to WPS Xxxxx
hereunder or thereunder, and the related Contracts, shall be
owned by Seller free and clear of any Adverse Claim (other
than any Adverse Claim arising solely as the result of any
action taken by WPS Xxxxx hereunder or by the Administrator on
behalf of the Secured Parties under the Amended and Restated
AITA); and Seller shall have made all filings and shall have
taken all other action under applicable law in each relevant
jurisdiction in order to protect and perfect the ownership
interest of WPS Xxxxx and its successors in such Receivables
and Related Assets against all creditors of, and purchasers
from, Seller.
(ii) Whenever WPS Xxxxx makes a purchase
hereunder, it shall have acquired and shall at all times
thereafter continuously maintain a valid and perfected first
priority ownership interest in each Transferred Asset, free
and clear of any Adverse Claim (other than any Adverse Claim
arising solely as the result of any action taken by WPS Xxxxx
hereunder or by the Administrator on behalf of the Secured
Parties under the Amended and Restated AITA).
(iii) No currently effective financing
statement or other instrument similar in effect that covers
all or part of any Receivable, any interest therein or any
Related Asset with respect thereto is on file in any recording
office except such as may be filed (A) in favor of Seller in
accordance with the Contracts, (B) in favor of WPS Xxxxx
pursuant to this
17
Purchase Agreement and, (C) in favor of the Administrator for
the benefit of the Secured Parties, in accordance with the
Amended and Restated AITA.
(iv) No purchase of an interest in any
Receivable or Related Asset of Seller by WPS Xxxxx from Seller
constitutes a fraudulent transfer or fraudulent conveyance
under the United States Bankruptcy Code or applicable state
bankruptcy or insolvency laws or is otherwise void or voidable
or subject to subordination under similar laws or principles
or for any other reason.
(v) The purchase of Receivables and
Related Assets by WPS Xxxxx from Seller constitutes a true and
valid sale of such Receivables and Related Assets under
applicable state law and true and valid assignments and
transfers for consideration (and not merely a pledge of such
Receivables and Related Assets for security purposes),
enforceable against the creditors of Seller, and no
Receivables or Related Assets transferred to WPS Xxxxx
hereunder shall constitute property of Seller.
(l) Eligible Receivables. On the date of each
Monthly Report or Interim Report which identifies a Receivable as an
Eligible Receivable, such Receivable is an Eligible Receivable.
(m) Accuracy of Information. All written
information furnished prior to, on and after the Effective Date by
Seller or any other WPS Person to WPS Xxxxx, the Servicer or the
Administrator pursuant to or in connection with any Transaction
Document or any transaction contemplated herein or therein shall not
contain any untrue statement of a material fact or omit to state
material facts necessary to make the statements made not misleading, in
each case on the date such statement was made and in light of the
circumstances under which such statements were made or such information
was furnished.
(n) Offices; Jurisdiction of Organization. The
principal place of business and chief executive office of Seller is
located at the address set forth under Seller's signature hereto, the
offices where Seller keeps all Records and all Contracts, purchase
orders and agreements related to the Receivables and the Related Assets
(and all original documents relating thereto) are located at the
addresses specified in Schedule 5.1(n) and the jurisdiction of
organization of the Seller is the State of Delaware (or at such other
locations or jurisdictions, notified
18
to the Servicer and the Administrator in accordance with Section 6.1(f)
or 6.1(o), as applicable, in jurisdictions where all action required
pursuant to Section 7.3 has been taken and completed).
(o) Lock-Box Banks and Payment Instructions. The
names and addresses of all Lock-Box Banks and the Concentration Bank,
together with the account numbers of the Lock-Box Accounts and the
Concentration Account at such Lock-Box Banks or Concentration Bank (as
applicable) are accurately identified on Schedule 5.1(o) hereto and
will be specified in such notices as shall have been delivered
thereafter pursuant to Section 6.3(c). Each lock-box identified on
Schedule 5.1(o) is maintained in the name of WPS Xxxxx and is subject
to a Lock-Box/Collection Account Agreement that is in full force and
effect and exclusive dominion and control of each such lock-box has
been transferred to WPS Xxxxx. Seller has not granted any Person, other
than WPS Xxxxx as contemplated by this Purchase Agreement, any
currently effective right of dominion and control of any such lock-box
or Lock-Box Account or the Concentration Account, or the right to take
dominion and control of any such lock-box or Lock-Box Account or the
Concentration Account at a future time or upon the occurrence of a
future event. Seller has instructed all Obligors to submit all payments
on the Receivables and Related Assets directly to one of the Lock-Box
Accounts. Seller has and maintains accounting, administrative and
operating procedures that permit identification of the Collections.
(p) Compliance with Applicable Laws. Seller is
in compliance in all respects with the requirements of all applicable
laws, rules, regulations, and orders of all Governmental Authorities
(federal, state, local or foreign, and including environmental laws), a
violation of any of which, individually or in the aggregate for all
such violations, could reasonably be expected to have a Material
Adverse Effect.
(q) Legal Names. During the past five years (i)
Seller has not been known by or used any legal name other than its
corporate name as of the date hereof, and (ii) Seller has not been the
subject of any merger or other corporate reorganization that resulted
in a change of name, identity or corporate structure. Seller uses no
trade names or assumed names other than its actual corporate name and
the trade names and assumed names set forth in Schedule 5.1(q).
19
(r) Investment Company Act. Seller is not, and
is not controlled by, an "investment company" registered or required to
be registered under the Investment Company Act of 1940, as amended.
(s) Taxes. Seller has filed or caused to be
filed all material tax returns and reports required by law to have been
filed by it and has paid all taxes, assessments and governmental
charges thereby shown to be owing, except any such taxes, assessments
or charges (i) which are being diligently contested in good faith by
appropriate proceedings, (ii) for which adequate reserves in accordance
with GAAP shall have been set aside on its books and (iii) with respect
to which no Lien has been imposed upon any Receivables or Related
Assets.
(t) [Intentionally Omitted].
(u) Compliance with Credit and Collection
Policy. With respect to each Receivable, the Seller has complied in all
material respects with the Credit and Collection Policy.
(v) Payments to Seller. With respect to each
Receivable transferred to WPS Xxxxx by Seller pursuant to this Purchase
Agreement, Seller represents that the Purchase Price paid to it
constitutes reasonably equivalent value in consideration for the
Receivables originated by it and the Related Assets with respect
thereto and such transfer was not made for or on account of antecedent
debt.
(w) Ownership of WPS Xxxxx. Seller owns,
directly or indirectly, 100% of the issued and outstanding capital
stock of WPS Xxxxx, free and clear of any Adverse Claim (other than the
lien created under (i) that certain Third Amended and Restated Stock
Pledge Agreement, dated as of March 26, 2001, by and between Seller and
Bank of America, N.A., as Trustee and (ii) that certain Collateral
Security Agreement, dated as of June 29, 2001, among Seller, certain
subsidiaries of Seller and Bankers Trust Company, as Administrative
Agent). Such capital stock is validly issued, fully paid and
nonassessable, and there are no options, warrants or other rights to
acquire securities of WPS Xxxxx.
(x) Material Agreements. The Agreements listed
on Schedule B to the opinion of Xxxxxxxxxx, Xxxxxx & Xxxxxxx of even
date herewith are all of the agreements relating to the financing of
the Seller.
20
SECTION 5.2 Representations and Warranties of WPS Xxxxx. From
the date hereof until the Purchase Termination Date, WPS Xxxxx hereby represents
and warrants that (a) (i) this Purchase Agreement has been duly executed and
delivered by WPS Xxxxx and (ii) constitutes WPS Xxxxx'x valid, binding and
legally enforceable obligation, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law, and (b) the execution, delivery and performance of this
Purchase Agreement does not violate any applicable law or any agreement to which
WPS Xxxxx is a party or by which its properties are bound.
ARTICLE VI
GENERAL COVENANTS OF SELLER
SECTION 6.1 Affirmative Covenants. From the Effective Date
until the first day following the Purchase Termination Date on which all
Obligations of Seller shall have been finally and fully paid and performed and
the Transferee's Total Investment shall have been reduced to zero, unless WPS
Xxxxx, the Administrator and the Insurer shall otherwise give its prior written
consent, Seller hereby agrees that it will perform the covenants and agreements
set forth in this Section 6.1.
(a) Compliance with Laws, Etc. Seller will
comply with all applicable laws, rules, regulations, judgments, decrees
and orders (including those relating to the Receivables, the Related
Assets, the related Contracts and any other agreements related
thereto), where the failure so to comply, individually or in the
aggregate for all such failures, could reasonably be expected to have a
Material Adverse Effect.
(b) Preservation of Corporate Existence. Seller
will preserve and maintain its corporate existence, rights, franchises
and privileges in the jurisdiction of its incorporation, and qualify
and remain qualified in good standing as a foreign corporation in each
jurisdiction where the failure to preserve and maintain such existence,
rights, franchises, privileges and qualifications could reasonably be
expected to have a Material Adverse Effect.
(c) Receivables Reviews. Seller shall, during
regular business hours upon not less than five Business Days' prior
notice (unless a Liquidation Event has occurred and is continuing (or
the Insurer or the Administrator reason-
21
ably believes in good faith that a Liquidation Event has occurred and
is continuing), in which case one Business Day notice shall be
required), permit WPS Xxxxx or the Administrator and their respective
agents or representatives, (i) to examine and make copies of and
abstracts from, and to conduct accounting reviews of, all Records in
the possession or under the control of Seller relating to the
Receivables or Related Assets generated by Seller, and (ii) to visit
the offices and properties of Seller for the purpose of examining such
materials described in clause (i) next above, and to discuss matters
relating to any Receivables or any Related Assets of Seller or Seller's
performance hereunder with any of the Authorized Officers of Seller or,
with the prior consent of an Authorized Officer of Seller, with
employees of Seller having knowledge of such matters (the examinations
set forth in the foregoing clauses (i) and (ii) being herein called a
"Seller Receivables Review"). WPS Xxxxx or the Administrator and its
agents or representatives shall be entitled to conduct Seller
Receivables Reviews whenever WPS Xxxxx or the Administrator, in its
reasonable judgment, deems a Seller Receivables Review appropriate.
Seller shall pay the costs and expenses for two such Seller Receivables
Reviews in the calendar year 2001 and the costs and expenses for one
such Seller Receivables Review in any other calendar year, and the
costs and expenses of any additional Seller Receivables Review during
the calendar year 2001 or any other calendar year shall be paid by WPS
Xxxxx unless a Liquidation Event shall have occurred and be continuing.
(d) Keeping of Records and Books of Account.
Seller shall maintain and implement administrative and operating
procedures (including, an ability to recreate records evidencing its
Receivables and Related Assets in the event of the destruction of the
originals thereof), and shall keep and maintain, all documents, books,
records and other information which, in the reasonable determination of
WPS Xxxxx and the Administrator, are necessary or advisable in
accordance with prudent industry practice and custom for transactions
of this type for the collection of all Receivables and the Related
Assets. Upon the request of WPS Xxxxx or the Administrator made at any
time after the occurrence and continuance of a Servicer Transfer Event,
Seller will deliver copies of all books and records maintained pursuant
to this Section 6.1(d) to the Administrator. Seller shall maintain at
all times accurate and complete books, records and accounts relating to
the Receivables, Related Assets and Contracts and all Collections
thereon in which timely entries shall be made. Such books and records
shall be marked to indicate the sales of all Receivables and Related
Assets hereunder and shall include (i) all payments received and all
credits and extensions granted with respect to such Receivables and
(ii) the return, rejection, repossession, or
22
stoppage in transit of any merchandise, the sale of which has given
rise to a Receivable that has been purchased by WPS Xxxxx.
(e) Performance and Compliance with Receivables
and Contracts. Seller will, at its expense, timely and fully perform
and comply with all provisions, covenants and other promises required
to be observed by it under the Contracts and all other agreements of
Seller related to the Receivables and Related Assets, the breach of
which provisions, covenants or promises could be reasonably expected to
have a Material Adverse Effect.
(f) Location of Records and Offices. Seller will
keep its principal place of business and chief executive office, and
the offices where it keeps all Records related to the Receivables and
the Related Assets (and all original documents relating thereto), at
the addresses referred to in Schedule 5.1(n) or, upon not less than 30
days' prior written notice given by Seller to WPS Xxxxx, and the
Administrator, at such other locations in jurisdictions where all
action required by Section 7.3 shall have been taken and completed.
(g) Credit and Collection Policies. Seller will
comply in all material respects with its Credit and Collection Policy
in regard to each Receivable of Seller and the Related Assets and the
Contracts related to each such Receivable, where the failure so to
comply, individually or in the aggregate for all such failures, could
reasonably be expected to have a Material Adverse Effect.
(h) Separate Corporate Existence of WPS Xxxxx.
Seller hereby acknowledges that the Administrator, on behalf of the
Secured Parties, is entering into the transactions contemplated by the
Amended and Restated AITA in reliance upon WPS Xxxxx'x identity as a
legal entity separate from Seller and the other WPS Persons. Therefore,
from and after the date hereof until the first day following the
Purchase Termination Date on which all Obligations of Seller and WPS
Xxxxx shall have been fully paid and performed and the Transferee's
Total Investment shall have been reduced to zero, Seller will, and will
cause each other WPS Person to, take all reasonable steps to continue
their respective identities as separate legal entities and to make it
apparent to third Persons that each is an entity with assets and
liabilities distinct from those of WPS Xxxxx and that WPS Xxxxx is not
a division of the Servicer, Seller or any other Person.
(i) Payment Instructions to Obligors. Seller
will instruct all Obligors to submit all payments on all Receivables
and Related Assets purchased
23
by WPS Xxxxx either (i) directly to one of the Lock-Box Accounts or
(ii) directly to the Concentration Account. Seller will cause (i) all
proceeds deposited directly to any Lock-Box Account to be transferred
daily to the Concentration Account, and (ii) each such lock-box and
Lock-Box Account and the Concentration Account to be maintained in the
name of the WPS Xxxxx and to be subject at all times to a
Lock-Box/Collection Account Agreement that is in full force and effect.
Seller shall not grant any Person, other than WPS Xxxxx or the
Administrator, dominion and control of any such lock-box or Lock-Box
Account or the Concentration Account, or the right to take dominion or
control of any lock-box or Lock-Box Account or the Concentration
Account at a future time or upon the occurrence of a future event.
Seller shall maintain accounting, administrative and operating
procedures that permit identification of the Collections.
(j) Taxes. Seller will file all tax returns and
reports required by law to be filed by it, will accrue in accordance
with GAAP for all taxes payable by it and will pay all taxes and
governmental charges shown on such tax returns and reports to be owing
by it, prior to the date on which penalties attach thereto except any
such taxes or charges which (i) are being diligently contested in good
faith by appropriate proceedings, (ii) for which adequate reserves in
accordance with GAAP have been set aside on their respective books and
(iii) with respect to which no Lien has been imposed upon any
Receivables or Related Assets.
(k) [Intentionally Omitted].
(l) Identification of Eligible Receivables.
Seller will establish and maintain such procedures as are necessary for
determining monthly whether each Receivable qualifies as an Eligible
Receivable as of the date of Purchase and thereafter as of each
Reporting Date, and for identifying all Receivables sold or to be sold
in that month which are not Eligible Receivables.
(m) Accuracy of Information. All written
information furnished on and after the Effective Date by Seller or any
other WPS Person to WPS Xxxxx, the Servicer or the Administrator
pursuant to or in connection with any Transaction Document or any
transaction contemplated herein or therein shall not contain any untrue
statement of a material fact or omit to state material facts necessary
to make the statements made not misleading, in each case on the date
such statement was made and in light of the circumstances under which
such statements were made or such information was furnished.
24
(n) [Intentionally Omitted].
(o) Ownership Interest of WPS Xxxxx. Seller
shall take all necessary action to establish and maintain, in favor of
WPS Xxxxx or its assigns, a valid and perfected first priority
undivided percentage ownership interest in all Receivables and the
Related Assets to the full extent contemplated herein, free and clear
of any Adverse Claims other than Adverse Claims in favor of WPS Xxxxx
or its assigns (including, without limitation, the filing of all
financing statements or other similar instruments or documents
necessary under the UCC of all appropriate jurisdictions (or any
comparable law) to perfect WPS Xxxxx'x or its assign's interest in such
Receivables and Related Assets and such other action to perfect,
protect or more fully evidence the interest of WPS Xxxxx or its assigns
as WPS Xxxxx or its assigns may reasonably request).
SECTION 6.2 Reporting Requirements. From the Effective Date
until the first day following the Purchase Termination Date on which all
Obligations of Seller shall have been finally and fully paid and performed and
the Transferee's Total Investment shall have been reduced to zero, Seller agrees
that it will, unless WPS Xxxxx, the Insurer and the Administrator, on behalf of
the Secured Parties, shall otherwise give prior written consent, furnish to WPS
Xxxxx and the Administrator:
(a) Quarterly Financial Statements. Within 50
days after the end of each of the first three fiscal quarters of each
fiscal year of WestPoint Xxxxxxx, copies of the unaudited consolidated
balance sheets of WestPoint Xxxxxxx and its Consolidated Subsidiaries
as at the end of such fiscal quarter and the related unaudited
statements of earnings and cash flows and stockholders' equity, in each
case for such fiscal quarter and for the period from the beginning of
such fiscal year through the end of such fiscal quarter, prepared in
accordance with GAAP consistently applied throughout the periods
reflected therein and certified (subject to year end adjustments) by
the chief financial officer or chief accounting officer of WestPoint
Xxxxxxx;
(b) Annual Financial Statements. As soon as
possible and in any event within 95 days after the end of each fiscal
year of WestPoint Xxxxxxx, a copy of the consolidated balance sheet of
WestPoint Xxxxxxx and its Consolidated Subsidiaries as at the end of
such fiscal year and the related statements of earnings, stockholders'
equity and cash flows of WestPoint Xxxxxxx and its Consolidated
Subsidiaries for such fiscal year, setting forth in each case in
comparative form the corresponding figures for the preceding fiscal
year and prepared in
25
accordance with GAAP consistently applied throughout the periods
reflected therein, accompanied by an opinion of Ernst & Young, LLP, (or
such other independent certified public accountants of a nationally
recognized standing in the United States of America as shall be
selected by Administrator), which opinion shall not be qualified in any
material respect;
(c) Liquidation Events. As soon as possible, and
in any event within three Business Days after an Authorized Officer of
Seller has obtained knowledge of the occurrence of any Liquidation
Event or any Unmatured Liquidation Event, a written statement of an
Authorized Officer of Seller describing such event and the action that
Seller proposes to take with respect thereto, in each case in
reasonable detail;
(d) Material Adverse Effect. As soon as possible
and in any event within three Business Days after an Authorized Officer
of Seller has knowledge thereof, written notice that describes in
reasonable detail any event or occurrence which, individually or in the
aggregate for all such events or occurrences, has had, or that could
reasonably be expected to have a Material Adverse Effect;
(e) Proceedings. As soon as possible and in any
event within five Business Days after an Authorized Officer of Seller
has knowledge thereof, written notice of (i) any litigation,
investigation or proceeding of the type described in Section 5.1(f) not
previously disclosed to WPS Xxxxx and (ii) any judgment, settlement or
other final disposition with respect to any such previously disclosed
litigation, investigation or proceeding;
(f) [Intentionally Omitted].
(g) [Intentionally Omitted].
(h) Reports to Holders and Exchanges. In
addition to the reports required by subsections (a), and (b) above,
promptly upon WPS Xxxxx'x request, Seller will furnish to WPS Xxxxx
copies of any reports specified in such request which Seller sends to
any of its securityholders, and any reports or registration statements
that Seller files with the Securities and Exchange Commission or any
national securities exchange other than registration statements
relating to employee benefit plans and to registrations of securities
for selling securities,
26
(i) ERISA. Promptly after the filing or
receiving thereof, Seller will furnish to WPS Xxxxx copies of all
reports and notices with respect to any Reportable Event defined in
Article IV of ERISA which Seller or any of its Subsidiaries files under
ERISA with the Internal Revenue Service, the Pension Benefit Guaranty
Corporation or the U.S. Department of Labor or which Seller or any of
its Subsidiaries receives from the Pension Benefit Guaranty
Corporation,
(j) Review of Pool Receivables. As soon as
available, (i) Seller will furnish to WPS Xxxxx, the Administrator and
the Insurer copies of all reports relating to audits or reviews of the
Receivables or the credit and collection policies or practices of
Seller, whether prepared by Seller, WPS Xxxxx or by an independent
third party and (ii) and in any event by the end of each fiscal year of
Seller, Seller will furnish to WPS Xxxxx, the Administrator and the
Insurer a report, prepared by a Person reasonably acceptable to WPS
Xxxxx as of the end of such fiscal year, substantially in the form of
the report delivered pursuant to Section 5.01(l) of the Original AITA
and covering such other matters as WPS Xxxxx, the Administrator and the
Insurer may reasonably request in order to protect the interests of WPS
Xxxxx under or as contemplated by this Purchase Agreement;
(k) Change in Business or Credit and Collection
Policy. At least ten (10) Business Days prior to its effective date,
Seller will furnish to WPS Xxxxx, the Administrator and the Insurer
notice of (i) any material change in the character of Seller's
business, and (ii) any material change in the Credit and Collection
Policy;
(l) Ratings. Within one Business Day of
obtaining knowledge thereof, Seller will furnish to WPS Xxxxx, the
Administrator and the Insurer notice of any downgrading or withdrawal
of any rating of Seller's senior secured debt by any rating agency; and
(m) Other. Promptly, from time to time, (i) such
other information, documents, records or reports respecting the
Receivables or the Related Assets or (ii) such other publicly available
information respecting the condition or operations, financial or
otherwise, of Seller, in each case as WPS Xxxxx may from time to time
reasonably request in order to protect the interests of WPS Xxxxx, the
Administrator, Blue Ridge and the other Secured Parties under or as
contemplated by this Purchase Agreement.
27
SECTION 6.3 Negative Covenants. From the Effective Date until
the first day following the Purchase Termination Date on which all Obligations
of Seller shall have been finally and fully paid and performed and the
Transferee's Total Investment shall have been reduced to zero, unless WPS Xxxxx,
the Insurer and the Administrator shall otherwise give their prior written
consent (which consent shall not be unreasonably withheld or delayed), Seller
hereby agrees that it will perform the covenants and agreements set forth in
this Section 6.3.
(a) Sales, Liens, Etc. Except as otherwise
provided herein or in the Amended and Restated AITA, Seller will not
(i) (A) sell, assign (by operation of law or otherwise) or otherwise
transfer to any Person, (B) pledge any interest in, (C) grant, create,
incur, assume or permit to exist any Adverse Claim to or in favor of
any Person upon or with respect to, or (D) cause to be filed any
financing statement or equivalent document relating to perfection that
covers, any Transferred Asset or any Contract related to any
Receivable, or upon or with respect to any Lock-Box Account or
Concentration Account or any interest therein, (ii) assign to any
Person any right to receive income from or in respect of any of the
foregoing or (iii) assert any interest in any Transferred Receivable or
any Contract relating to any Receivable, except as Servicer.
In the event that Seller fails to keep any
Transferred Assets free and clear of any Adverse Claim (other than
Adverse Claims arising hereunder or under the Amended and Restated
AITA, and other Adverse Claims permitted by any other Transaction
Document), WPS Xxxxx may (without limiting its other rights with
respect to Seller's breach of its obligations hereunder) make
reasonable expenditures necessary to release such Adverse Claim. WPS
Xxxxx shall be entitled to indemnification for any such expenditures
pursuant to the indemnification provisions of Article IX.
Alternatively, WPS Xxxxx may deduct such expenditures as an offset to
the Purchase Price owed to Seller hereunder.
(b) Extension or Amendment of Receivables;
Change in Credit and Collection Policy or Contracts. Seller will not
extend, amend or otherwise modify the terms of any Receivable or
Contract in a manner that materially adversely affects the
collectibility of any Receivable or WPS Xxxxx'x or the Administrator's
rights therein (except in its capacity as Servicer and then only to the
extent permitted under Section 8.02(c) of the Amended and Restated
AITA) or (ii) make or permit to be made any change in the character of
its business or in the Credit and Collection Policy that would, in
either case, impair the collectibility of any significant portion of
the Receivables or otherwise adversely affect the
28
interests or remedies of WPS Xxxxx'x or the Administrator's rights
therein unless with respect to any material change in accounting
policies relating to Receivables, such change is made in accordance
with GAAP.
(c) Change in Payment Instructions to Obligors.
Seller will not (i) add or terminate any bank as a Lock-Box Bank from
those listed on Schedule 5.1(o) unless, prior to any such addition,
termination or change WPS Xxxxx and the Administrator shall have
received not less than ten Business Days' prior written notice of such
addition or termination and, not less than ten Business Days prior to
the effective date of any such proposed addition, change or
termination, WPS Xxxxx and the Administrator shall have received (A)
counterparts of the applicable type of Lock- Box/Collection Account
Agreement with each new Lock-Box Bank, duly executed by such new
Lock-Box Bank and all other parties thereto and (B) copies of all other
agreements and documents signed by such Lock-Box Bank and such other
parties with respect to any new Lock-Box Account, all of which
agreements and documents shall be reasonably satisfactory in form and
substance to WPS Xxxxx and the Administrator, or (ii) make any change
in its instructions to Obligors, given in accordance with Section
5.1(o), regarding payments to be made to Seller or payments to be made
to any Lock-Box Bank or the Concentration Account, other than changes
in such instructions which direct Obligors to make payments to another
Lock-Box Account or Concentration Account (as applicable) at such
Lock-Box or Concentration Bank.
(d) Mergers, Consolidations, Sales, etc. Except
for mergers or consolidations permitted by the Credit Agreement, Seller
will not be a party to any merger or consolidation or, except as
permitted by the Credit Agreement, purchase, lease or otherwise acquire
(in one transaction or in a series of transactions) all or
substantially all of the assets of any other Person (whether directly
by purchase, lease or acquisition of all or substantially all of the
assets of such Person or indirectly by purchase or other acquisition of
all or substantially all of the capital stock of such other Person).
Seller will give WPS Xxxxx and the Administrator notice of any such
permitted merger or consolidation promptly following completion
thereof. Seller will not, directly or indirectly, transfer, assign,
convey or lease, whether in one transaction or in a series of
transactions, all or substantially all of its assets except as
permitted by the Credit Agreement, or sell or assign, with or without
recourse, any Receivables or Related Assets, in each case other than
pursuant to this Purchase Agreement.
29
(e) Change in Name; Jurisdiction of
Organization. Seller will not, nor will it permit WPS Xxxxx to (i)
change its corporate name, any trade name or corporate structure, or
its jurisdiction of organization or (ii) change the name under or by
which it does business in any manner which would or may make any
financing statement filed by Seller in accordance herewith seriously
misleading within the meaning of Section 9-506 of an applicable
enactment of the UCC, in each case unless Seller or WPS Xxxxx (as
applicable) shall have given WPS Xxxxx, the Servicer and the
Administrator 30 days' prior written notice thereof and unless, prior
to any such change in name, Seller shall have taken and completed all
action required by Section 7.3.
(f) Certificate of Incorporation. Seller will
not cause WPS Xxxxx to amend its Certificate of Incorporation or Bylaws
without the prior written consent of WPS Xxxxx and the Administrator,
which consent will not be unreasonably withheld or delayed.
(g) Amendments to Transaction Documents. Seller
will not amend or otherwise modify or supplement any Transaction
Document to which it is a party unless WPS Xxxxx and the Administrator
(and to the extent required by Section 14.01 of the Amended and
Restated AITA, the Insurer) shall have given its prior written consent
to each such amendment, modification or supplement, which consent shall
not be unreasonably withheld or delayed.
(h) Accounting for Purchases. Seller shall
prepare its financial statements in accordance with GAAP. Seller shall
not prepare any financial statements which account for the transactions
contemplated in this Purchase Agreement in any manner other than as a
sale of the Purchased Assets by Seller to WPS Xxxxx, or in any other
respect account for or treat the transactions contemplated in this
Purchase Agreement (including but not limited to accounting and, where
taxes are not consolidated, for tax reporting purposes) in any manner
other than as a sale of the Transferred Assets by Seller to WPS Xxxxx.
(i) Receivables Not to be Evidenced by
Promissory Notes. Seller shall not take any action to cause or permit
any Receivable to become evidenced by any "instrument" (as defined in
the applicable UCC), except in connection with the
collection of any such Receivable which is overdue provided that the
original of such instrument is delivered to WPS Xxxxx, duly endorsed.
30
(j) Deposits to Lock-Box Accounts and
Concentration account. Seller shall not deposit or otherwise credit, or
cause or permit to be so deposited or credited, to any Lock-Box Account
or Concentration Account, any cash or cash proceeds other than
Collections of Receivables. To the extent that any such funds
nevertheless are deposited into any of such Lock-box Accounts or
Concentration Account, the Seller shall promptly identify any such
funds, or shall cause such funds to be so identified, to WPS Xxxxx, the
Servicer and the Administrator (following which notice, WPS Xxxxx shall
cause the Servicer to return all such funds to the Seller).
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE TRANSFERRED ASSETS
SECTION 7.1 Rights of WPS Xxxxx.
(a) Subject to Section 7.4(b), Seller hereby authorizes
WPS Xxxxx, the Servicer and/or their respective designees to take any and all
steps in Seller's name and on behalf of Seller that WPS Xxxxx, the Servicer
and/or their respective designees determine are reasonably necessary or
appropriate to collect all amounts due under any and all Transferred Assets,
including endorsing the name of Seller on checks and other instruments
representing Collections and enforcing such Receivables and Related Assets.
(b) Except as set forth in Section 3.1(c) with respect to
Noncomplying Receivables and Dilution Adjustments to the Purchase Price, WPS
Xxxxx shall have no obligation to account for, to replace, to substitute or to
return any Transferred Asset to Seller. WPS Xxxxx shall have no obligation to
account for, or to return Collections, or any interest or other finance charge
collected pursuant thereto, to Seller, irrespective of whether such Collections
and charges are in excess of the Purchase Price for such Purchased Assets.
(c) WPS Xxxxx shall have the unrestricted right to
further assign, transfer, deliver, hypothecate, subdivide or otherwise deal with
the Transferred Assets, and all of WPS Xxxxx'x right, title and interest in, to
and under this Purchase Agreement, on whatever terms WPS Xxxxx shall determine,
pursuant to the Amended and Restated AITA or otherwise.
31
(d) WPS Xxxxx shall have the sole right to retain any
gains or profits created by buying, selling or holding the Transferred Assets
and shall have the sole risk of and responsibility for losses or damages created
by such buying, selling or holding.
SECTION 7.2 Responsibilities of Seller. Anything herein to the
contrary notwithstanding:
(a) Seller agrees to deliver directly to the
Servicer (for WPS Xxxxx'x account), within one Business Day after
receipt thereof, any Collections that it receives, in the form so
received, and agrees that all such Collections shall be deemed to be
received in trust for WPS Xxxxx and shall be maintained and segregated
separate and apart from all other funds and moneys of Seller until
delivery of such Collections to the Servicer.
(b) Seller shall perform all of its obligations
hereunder and under the Contracts related to the Receivables and
Related Assets to the same extent as if such Receivables had not been
sold hereunder, and the exercise by WPS Xxxxx or its designee or
assignee of WPS Xxxxx'x rights hereunder or in connection herewith
shall not relieve Seller from any of its obligations under the
Contracts or Related Assets related to the Receivables.
(c) Seller hereby grants to WPS Xxxxx an
irrevocable power of attorney, with full power of substitution, coupled
with an interest, to take in the name of Seller all steps necessary or
advisable to endorse, negotiate or otherwise realize on any writing or
other right of any kind held or transmitted by Seller or transmitted or
received by WPS Xxxxx (whether or not from Seller) in connection with
any Transferred Asset.
(d) To the extent that Seller does not own the
computer software that Seller uses to account for Receivables, Seller
shall use reasonable efforts to provide WPS Xxxxx and the Administrator
with such licenses, sublicenses and/or assignments of contracts as WPS
Xxxxx or the Administrator shall require with regard to all services
and computer hardware or software used by Seller that relate to the
servicing of the Receivables or the Related Assets.
SECTION 7.3 Further Action Evidencing Purchases. Seller agrees
that from time to time, at its expense, it will promptly, upon reasonable
request, execute and deliver all further instruments and documents, and take all
further action, in order to perfect, protect or more fully evidence the purchase
by WPS Xxxxx of the Receivables and
32
the Related Assets under this Purchase Agreement, or to enable WPS Xxxxx to
exercise or enforce any of its rights hereunder or under any other Transaction
Document. Seller further agrees that from time to time, at its expense, it will
promptly, upon request, take all action that WPS Xxxxx, the Servicer or the
Administrator may reasonably request in order to perfect, protect or more fully
evidence such purchase of the Receivables and the Related Assets or to enable
WPS Xxxxx or the Administrator, on behalf of the Secured Parties, to exercise or
enforce any of its rights hereunder or under any other Transaction Document.
Without limiting the generality of the foregoing, upon the request of WPS Xxxxx,
Seller will:
(a) execute and file such financing or
continuation statements, or amendments thereto or assignments thereof,
and such other instruments or notices, as WPS Xxxxx or the
Administrator may reasonably determine to be necessary or appropriate;
and
(b) place on its computer systems and records
which store information relating to and evidencing the Receivables the
following legend:
"THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO WPS
RECEIVABLES CORPORATION PURSUANT TO A FIRST AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT, DATED AS OF OCTOBER
31, 2001, BETWEEN WESTPOINT XXXXXXX INC. AND WPS RECEIVABLES
CORPORATION; AND SUCH RECEIVABLES HAVE BEEN TRANSFERRED TO
WACHOVIA BANK, N.A., AS ADMINISTRATOR ON BEHALF OF THE SECURED
PARTIES PURSUANT TO THE FIRST AMENDED AND RESTATED ASSET
INTEREST TRANSFER AGREEMENT, DATED AS OF OCTOBER 31, 2001,
AMONG WPS RECEIVABLES CORPORATION, AS TRANSFEROR, WESTPOINT
XXXXXXX INC., AS INITIAL SERVICER, BLUE RIDGE ASSET FUNDING
CORPORATION, AS TRANSFEREE, NORTH AMERICAN CAPACITY INSURANCE
COMPANY, AS INSURER AND WACHOVIA BANK, N.A., AS
ADMINISTRATOR."
Seller hereby authorizes WPS Xxxxx or its designee to file a
record or records, including without limitation, one or more financing or
continuation statements, and amendments thereto and assignments thereof,
relative to all or any of the Receivables
33
and Related Assets of Seller, in each case whether now existing or hereafter
generated by Seller. Except for material performance obligations of Seller to
any Obligor hereunder or under any of the Contracts, if (i) Seller fails to
perform any of its agreements or obligations under this Purchase Agreement and
does not remedy such failure within the applicable cure period, if any, and (ii)
WPS Xxxxx in good faith reasonably believes that the performance of such
agreements and obligations is necessary or appropriate to protect the interests
of WPS Xxxxx under this Purchase Agreement, then WPS Xxxxx or its designee may
(but shall not be required to) perform, or cause performance of, such agreement
or obligation and the reasonable expenses of WPS Xxxxx or its designee or
assignee incurred in connection with such performance shall be payable by Seller
as provided in Section 9.1.
SECTION 7.4 Collection of Receivables; Rights of WPS Xxxxx and
Its Assignees.
(a) Seller hereby transfers to WPS Xxxxx ownership of,
and the exclusive dominion and control over, each of the Lock-Box Accounts owned
by Seller, and Seller hereby agrees to take any further action that WPS Xxxxx or
the Administrator (as assignee of WPS Xxxxx) may reasonably request in order to
effect or complete such transfer.
(b) WPS Xxxxx may, at any time, direct the Obligors of
Receivables, or any of them, to pay all amounts payable under any Transferred
Asset directly to the Administrator or its designees. Furthermore, Seller shall,
at the request of WPS Xxxxx and at Seller's expense, promptly give notice of
Blue Ridge's interest in the Receivables of such Obligor and the Related Assets
to each such Obligor and direct that payments be made directly to the
Administrator or its designee, which notice shall be acceptable in form and
substance to WPS Xxxxx. In addition, Seller hereby authorizes WPS Xxxxx to take
any and all steps in Seller's name and on behalf of Seller that are necessary or
desirable, in the reasonable determination of WPS Xxxxx, to collect all amounts
due under any and all Transferred Assets, including endorsing Seller's name on
checks and other instruments representing Collections and enforcing the
Receivables, Related Assets and the Contracts related to such Receivables. The
Administrator, on the Secured Parties behalf, may exercise any of the foregoing
rights in the place of WPS Xxxxx (as assignee or otherwise) at any time
following the designation of a Servicer other than WestPoint Xxxxxxx pursuant to
Section 8.01 of the Amended and Restated AITA or the occurrence and continuance
of a Liquidation Event.
(c) At any time when (i) a Liquidation Event shall have
occurred and remain continuing or (ii) a Servicer other than WestPoint Xxxxxxx
has been designated
34
pursuant to Section 8.01 of the Amended and Restated AITA, Seller shall, at WPS
Xxxxx'x request, assemble all of the Records which evidence the Receivables and
Related Assets originated by Seller and the Contracts related to such
Receivables, or which are otherwise necessary or desirable to collect such
Receivables or Related Assets, and make the same available to WPS Xxxxx, the
Insurer or the Administrator at a place selected by the Administrator, the
Insurer or its respective designee.
ARTICLE VIII
TERMINATION
SECTION 8.1 Termination by Seller. Prior to the Termination
Date, Seller may terminate its agreement to sell Receivables hereunder to WPS
Xxxxx by giving WPS Xxxxx, the Insurer and the Administrator not less than
thirty Business Days' prior written notice of Seller's election not to continue
to sell Receivables to WPS Xxxxx. Upon receipt of a termination notice from
Seller, WPS Xxxxx shall notify the Administrator, the Insurer and Blue Ridge
that it is electing to reduce the Transferee's Total Investment to zero pursuant
to Section 3.02 of the Amended and Restated AITA as early as is practicable. The
sale of Receivables under this Purchase Agreement will not cease until the
Transferee's Total Investment shall have been reduced to zero.
SECTION 8.2 Automatic Termination. The agreement of Seller to
sell Receivables hereunder, and the agreement of WPS Xxxxx to purchase
Receivables from Seller hereunder, shall terminate automatically as a result of
a bankruptcy proceeding being filed by or against Seller or WPS Xxxxx.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Indemnities by Seller. Without limiting any other
rights which any RPA Indemnified Party (as defined below) may have hereunder or
under applicable law, Seller severally agrees to indemnify WPS Xxxxx, each of
its successors, permitted transferees and assigns (including, for this purpose,
the assignment made pursuant to Section 11.03 of the Insurance Policy to the
Insurer), and all officers, directors, shareholders, controlling Persons,
employees and agents of any of the foregoing (each of the foregoing Persons
being individually called a "RPA Indemnified Party"), forthwith on demand, from
and against any and all damages, losses, claims (whether on account of
settlements or otherwise), judgments, liabilities and related reasonable costs
35
and expenses (including reasonable attorneys' fees and disbursements) awarded
against or incurred by any of them arising out of or as a result of any of the
following (all of the foregoing being collectively called "RPA Indemnified
Losses"):
(a) any representation or warranty made in
writing by Seller (or any of its Authorized Officers) under or in
connection with any of the Transaction Documents, any Monthly Report,
any Interim Report or any other information or report delivered by
Seller or the Servicer (for so long as the Servicer is a WPS Person)
shall have been false, incorrect or materially misleading when made or
deemed made or omitted to state material facts necessary to make the
statements made not misleading;
(b) the failure by Seller to comply with any
applicable law, rule or regulation with respect to any Receivable or
any Related Asset or to comply with any Contract related thereto, or
the nonconformity of any Receivable, the related Contract or any
Related Assets with any such applicable law, rule or regulation;
(c) the failure to vest and maintain vested in
WPS Xxxxx and its assigns a first priority perfected ownership interest
in the Receivables, the Related Assets, the related Collections and the
proceeds of each of the foregoing, free and clear of any Adverse Claim
(other than an Adverse Claim created in favor of WPS Xxxxx pursuant to
this Purchase Agreement or in favor of the Administrator on behalf of
the Secured Parties pursuant to the Amended and Restated AITA), whether
existing at the time of the sale of such Receivable or at any time
thereafter;
(d) any failure of Seller to perform its duties
or obligations in accordance with the provisions of the Transaction
Documents;
(e) any products liability claim, personal
injury or property damage suit, environmental liability claim or any
other claim or action by a party other than WPS Xxxxx or a WPS Person
of whatever sort, whether sounding in tort, contract or any other legal
theory, arising out of or in connection with the goods or services that
are the subject of any Receivable or the Related Assets with respect
thereto or Collections thereof;
(f) the failure to file, or any delay in filing,
financing statements or other similar instruments or documents under
the UCC of any applicable jurisdic-
36
tion or other applicable laws with respect to any Receivables or the
Related Assets or Collections, whether at the time of any sale or at
any subsequent time;
(g) any dispute, claim, offset or defense (other
than the discharge in bankruptcy) of an Obligor to the payment of any
Receivable or Related Asset, or Related Asset, including a defense
based on such Receivable's or the related Contract's not being a legal,
valid and binding obligation of such Obligor enforceable against it in
accordance with its terms or any other claim resulting from the sale of
the merchandise or services related to such Receivable or the
furnishing or failure to furnish such merchandise or services;
(h) any tax or governmental fee or charge (other
than franchise taxes and taxes on or measured by the net income of WPS
Xxxxx or any of its assignees), all interest and penalties thereon or
with respect thereto, and all reasonable out-of-pocket costs and
expenses, including the reasonable fees and expenses of counsel in
defending against the same, which may arise by reason of the purchase
or ownership of the Receivables or any Related Asset connected with any
such Receivables or in any goods which secure any such Receivable or
Related Asset;
(i) any transfer by Seller of any interest in
any Receivable other than the transfer of Receivables and related
property by the Seller to WPS Xxxxx pursuant to this Purchase
Agreement; and
(j) any claim of breach by any Seller of any
related Contract with respect to any Receivable.
Notwithstanding the foregoing (and with respect to clause (ii) below, without
prejudice to the rights that WPS Xxxxx may have pursuant to the other provisions
of this Purchase Agreement or the provisions of any of the other Transaction
Documents), in no event shall any RPA Indemnified Party be indemnified for any
RPA Indemnified Losses (i) resulting from gross negligence or willful misconduct
on the part of such RPA Indemnified Party, (ii) to the extent the same includes
losses in respect of Receivables and reimbursement therefor that would
constitute credit recourse to Seller for the amount of any Receivable or Related
Asset not paid by the related Obligor, (iii) resulting from the action or
omission of the Servicer (unless the Servicer is a WPS Person), (iv) to the
extent that the same are or result from lost profits (except to the extent any
such lost profits are incurred under Sections 4.02 or 4.03 of the Amended and
Restated AITA), (v) to the
37
extent the same are or result from taxes on or measured by the net income of
such RPA Indemnified Party and (vi) to the extent the same constitute
consequential, special or punitive damages (except to the extent any such
consequential, special or punitive damages are actually imposed on an RPA
Indemnified Party as a result of a claim brought by a third party).
SECTION 9.2. Contribution. If for any reason the
indemnification provided in Section 9.1 is unavailable to a RPA Indemnified
Party or is insufficient to hold a RPA Indemnified Party harmless, then Seller
shall contribute to the maximum amount payable or paid to such RPA Indemnified
Party as a result of such loss, claim, damage or liability in such proportion as
is appropriate to reflect not only the relative benefits received by such RPA
Indemnified Party on the one hand and Seller on the other hand, but also the
relative fault of such RPA Indemnified Party (if any) and Seller and any other
relevant equitable considerations.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Amendments; Waivers, Etc.
(a) The provisions of this Purchase Agreement may from
time to time be amended, modified or waived, if such amendment, modification or
waiver is in writing and signed by WPS Xxxxx and Seller (with respect to an
amendment) or by WPS Xxxxx (with respect to a waiver or consent by it) and
consented to by the Administrator and the Insurer, provided, however, that the
Insurer shall not withhold its consent to any such amendment, waiver or consent
(or in respect of any other provision hereof that requires its consent or
approval) unless it determines, in good faith, that it would be materially and
adversely affected by such amendment, waiver, consent or approval; and provided,
further, that if the Insurer elects not to consent to any proposed amendment,
waiver or other modification, the appropriate parties may nonetheless make such
amendment, waiver or other modification upon further written notice to the
Insurer of their decision to proceed without the consent of the Insurer and, in
such event, the Insurer may terminate the Insurance Policy in accordance with
Article 16 thereof. Any amendment, waiver or consent effected in accordance with
the terms hereof shall be effective only in the specific instance and for the
specific purpose for which given.
(b) No failure or delay on the part of WPS Xxxxx, any RPA
Indemnified Party, or the Administrator or any other third party beneficiary
referred to in Section
38
10.12(a) in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on Seller in any case shall entitle it to
any notice or demand in similar or other circumstances. No waiver or approval by
WPS Xxxxx, the Insurer or the Administrator under this Purchase Agreement shall,
except as may otherwise be stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval under this Purchase Agreement
shall require any similar or dissimilar waiver or approval thereafter to be
granted hereunder.
SECTION 10.2 Notices, Etc. All notices and other
communications provided for hereunder shall, unless otherwise stated herein, be
in writing (including facsimile communication) and shall be personally delivered
or sent by express mail or courier or by certified mail, postage prepaid, or by
facsimile, to the intended party at the address or facsimile number of such
party set forth under its name on the signature pages hereof or at such other
address or facsimile number as shall be designated by such party in a written
notice to the other parties hereto given in accordance with this Section 10.2.
Copies of all notices and other communications provided for hereunder shall be
delivered to the Administrator and the Insurer at its respective address for
notices set forth in the Amended and Restated AITA. All notices and
communications provided for hereunder shall be effective, (a) if personally
delivered, or sent by express mail or courier or if sent by certified mail, when
received, and (b) if transmitted by facsimile, when sent, receipt confirmed by
telephone or electronic means.
SECTION 10.3 Cumulative Remedies. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law. Without
limiting the foregoing, Seller hereby authorizes WPS Xxxxx, at any time and from
time to time, to the fullest extent permitted by law, to set-off, against any
Obligations of WPS Xxxxx to Seller that are then due and payable or that are not
then due and payable by WPS Xxxxx to Seller but have then accrued, any and all
indebtedness or other obligations (i) at any time owing to WPS Xxxxx by Seller
or (ii) that are not then due and payable from WPS Xxxxx to Seller but have then
accrued.
SECTION 10.4 Binding Effect; Assignability; Survival of
Provisions. This Purchase Agreement shall be binding upon and inure to the
benefit of WPS Xxxxx, Seller and their respective successors and permitted
assigns. Seller may not assign any of its rights hereunder or any interest
herein without the prior written consent of WPS Xxxxx, the Insurer and the
Administrator (on behalf of the Secured Parties). This Purchase Agreement shall
create and constitute the continuing obligations of the parties hereto in
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accordance with its terms, and shall remain in full force and effect until the
earlier of (i) the first date following the Purchase Termination Date, (ii) the
date on which the Transferee's Total Investment shall have been reduced to zero
pursuant to Section 3.02 of the Amended and Restated AITA, and all Obligations
of Seller hereunder shall have been finally and fully paid and performed and
(iii) such other later time as the parties hereto shall agree. The rights and
remedies with respect to any breach of any representation and warranty made by
Seller pursuant to Article V and the indemnification and payment provisions of
Article IX and Section 10.6 shall be continuing and shall survive any
termination of this Purchase Agreement.
SECTION 10.5 Governing Law. THIS PURCHASE AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE, EXCEPT TO THE
EXTENT THAT THE PERFECTION OF THE INTERESTS OF WPS XXXXX IN THE RECEIVABLES AND
THE RELATED ASSETS ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK.
SECTION 10.6 Costs, Expenses and Taxes. In addition to the
obligations of Seller under Article IX, Seller, severally with respect to
itself, agrees to pay on demand:
(a) all reasonable out-of-pocket and other costs
and expenses in connection with the enforcement of this Purchase
Agreement, the Seller Assignment Certificate or the other Transaction
Documents by WPS Xxxxx or any successor in interest to WPS Xxxxx; and
(b) all stamp and other taxes and fees payable
or determined to be payable in connection with the execution and
delivery by Seller, and the filing and recording, of this Purchase
Agreement or the other Transaction Documents, and agrees to indemnify
each RPA Indemnified Party against any liabilities with respect to or
resulting from any delay in paying or the omission to pay such taxes
and fees.
SECTION 10.7 Consent to Jurisdiction; Waiver of Immunities.
EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT:
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(A) IT IRREVOCABLY (I) SUBMITS TO THE
JURISDICTION, FIRST, OR ANY UNITED STATES FEDERAL COURT, AND SECOND, IF FEDERAL
JURISDICTION IS NOT AVAILABLE, OF ANY GEORGIA STATE COURT, IN EITHER CASE,
SITTING IN XXXXXX COUNTY, GEORGIA, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS PURCHASE AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, (II)
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED ONLY IN SUCH GEORGIA STATE OR FEDERAL COURT AND NOT IN ANY OTHER
COURT, (III) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING, (IV)
CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED
FOR NOTICES HEREUNDER, AND (V) TO THE EXTENT ALLOWED BY LAW, AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
(B) TO THE EXTENT THAT IT HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM THE JURISDICTION OF ANY COURT OR FROM ANY LEGAL
PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID TO EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, IT HEREBY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER OR IN CONNECTION WITH THIS PURCHASE AGREEMENT.
SECTION 10.8 Waiver of Jury Trial. EACH PARTY HERETO EXPRESSLY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER OR RELATING TO THIS PURCHASE AGREEMENT, ANY OTHER
TRANSACTION DOCUMENT, OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), ACTIONS OF EITHER OF THE PARTIES HERETO OR ANY
OTHER RELATIONSHIP EXISTING IN CONNEC-
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TION WITH THIS PURCHASE AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
SECTION 10.9 Integration. This Purchase Agreement and the
other Transaction Documents contain a final and complete integration of all
prior expressions by the parties hereto with respect to the subject matter
hereof and thereof and shall together constitute the entire agreement between
the parties hereto with respect to the subject matter hereof and thereof,
superseding all prior oral or written understandings.
SECTION 10.10 Execution in Counterparts. This Purchase
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement.
SECTION 10.11 Acknowledgment and Consent.
(a) Seller acknowledges that, contemporaneously herewith,
WPS Xxxxx is selling, transferring, assigning, setting over and otherwise
conveying to the Administrator on behalf of the Secured Parties an Asset
Interest in the outstanding pool of Receivables and Related Assets sold by
Seller to WPS Xxxxx from time to time pursuant to this Purchase Agreement and
that the Administrator may further assign such Asset Interest to the Insurer
pursuant to the Insurance Policy. Seller hereby consents to the sale, transfer,
assignment, set over and conveyance to the Administrator on behalf of the
Secured Parties by WPS Xxxxx, and by the Administrator to the Insurer, of the
Asset Interest, and all of WPS Xxxxx'x rights, remedies, powers and privileges,
and all claims of WPS Xxxxx against Seller, under or with respect to this
Purchase Agreement and the other Transaction Documents (whether arising pursuant
to the terms of this Purchase Agreement or otherwise available at law or in
equity), including (i) the right of WPS Xxxxx, at any time, to enforce this
Purchase Agreement against Seller and the obligations of Seller hereunder, and
(ii) the right, at any time, to give or withhold any and all consents, requests,
notices, directions, approvals, demands, extensions or waivers under or with
respect to this Purchase Agreement, any other Transaction Document or the
obligations in respect of Seller thereunder to the same extent as WPS Xxxxx may
do. Each of the parties hereto acknowledges and agrees that the Administrator
(on behalf of the Secured Parties), the Insurer and Blue Ridge are third party
beneficiaries of the rights of WPS Xxxxx arising hereunder and under the other
Transaction Documents to which Seller is a party. Seller hereby acknowledges and
agrees that it has no claim to or interest in any of the Lock-Box Accounts or
the Concentration Account.
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(b) Seller hereby agrees to execute all agreements,
instruments and documents, and to take all other action, that WPS Xxxxx, the
Insurer or the Administrator reasonably determines is necessary or appropriate
to evidence its consent described in paragraph (a) above. To the extent that WPS
Xxxxx, individually or through the Servicer, has granted or grants powers of
attorney to the Administrator under the Amended and Restated AITA, Seller hereby
grants a corresponding power of attorney on the same terms to WPS Xxxxx. Seller
hereby acknowledges and agrees that WPS Xxxxx, in all of its capacities, shall
assign to the Administrator for the benefit of the Secured Parties such powers
of attorney and other rights and interests granted by Seller to WPS Xxxxx
hereunder and that the Administrator may further assign such rights and
interests to the Insurer and agrees to cooperate fully with the Administrator
and the Insurer in the exercise of such rights.
SECTION 10.12 No Partnership or Joint Venture. Nothing
contained in this Purchase Agreement shall be deemed or construed by the parties
hereto or by any third person to create the relationship of principal and agent
or of partnership or of joint venture.
SECTION 10.13 No Proceedings. Seller hereby agrees that it
will not institute against WPS Xxxxx or Blue Ridge, or join any other Person in
instituting against WPS Xxxxx or Blue Ridge, any insolvency or bankruptcy
proceeding (namely, any proceeding of the type referred to in the definition of
"Event of Bankruptcy") so long as Commercial Paper Notes shall be outstanding or
there shall not have elapsed one year plus one day since the last day on which
any such Commercial Paper Notes shall have been outstanding. The foregoing shall
not limit the right of Seller to file any claim in or otherwise take any action
with respect to any insolvency proceeding that was instituted against WPS Xxxxx
or Blue Ridge by any Person other than Seller or any other WPS Person.
SECTION 10.14 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Purchase Agreement or
any of the other Transaction Documents shall for any reason whatsoever be held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Purchase Agreement or such other Transaction Document (as applicable) and shall
in no way affect the validity or enforceability of the other provisions of this
Purchase Agreement or any of the other Transaction Documents.
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SECTION 10.15 Recourse to WPS Xxxxx. Except to the extent
expressly provided otherwise in the Transaction Documents, the obligations of
WPS Xxxxx under the Transaction Documents to which it is a party are solely the
obligations of WPS Xxxxx, and no recourse shall be had for payment of any fee
payable by or other obligation of or claim against WPS Xxxxx that arises out of
any Transaction Document to which WPS Xxxxx is a party against any director,
officer or employee of WPS Xxxxx. The provisions of this Section 10.15 shall
survive the termination of this Purchase Agreement.
SECTION 10.16 Confirmation and Ratification of Terms.
(a) Upon the effectiveness of this Purchase
Agreement, each reference to the Original Purchase Agreement in any other
Transaction Document, and any document, instrument or agreement executed and/or
delivered in connection with the Original Purchase Agreement and any Transaction
Document, shall mean and be a reference to this Purchase Agreement.
(b) The other Transaction Documents and all
agreements, instruments and documents executed or delivered in connection with
the Original Purchase Agreement and any of the Transaction Documents shall each
be deemed to be amended to the extent necessary, if any, to give effect to the
provisions of this Purchase Agreement, as the same may be amended, modified,
supplemented or restated from time to time.
(c) The effect of this Purchase Agreement is to
amend and restate the Original Purchase Agreement, and to the extent that any
rights, benefits or provisions in favor of any of the parties to the Original
Purchase Agreement existed in the Original Purchase Agreement and continue to
exist in this Purchase Agreement without any written waiver of any such rights,
benefits or provisions prior to the date hereof, then such rights, benefits or
provisions are acknowledged to be and to continue to be effective from and after
the Effective Date. This Purchase Agreement is not a novation.
(d) The parties hereto agree and acknowledge
that any and all rights, remedies and payment provisions under the Original
Purchase Agreement, which are continuing and survive any termination of the
Original Purchase Agreement including, without limitation, any and all rights,
remedies and payment provisions with respect to (A) any representation and
warranty made or deemed to be made pursuant to the Original Purchase Agreement,
or (B) any indemnification provision, shall continue and survive the execution
and delivery of this Purchase Agreement.
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(e) The parties hereto agree and acknowledge
that any and all amounts owing as or for fees, expenses or otherwise under or
pursuant to the Original Purchase Agreement, immediately prior to the
effectiveness of this Purchase Agreement shall be owing as or for fees, expenses
or otherwise, respectively, under or pursuant to this Purchase Agreement.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties have caused this First Amended
and Restated Receivables Purchase Agreement to be executed by their respective
officers thereunto duly authorized, as of the date first above written.
WESTPOINT XXXXXXX INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: J. Xxxxxx Xxxxxxxx
Title: Senior Vice President and Controller
Address: 000 Xxxx 00xx Xxxxxx
Post Xxxxxx Xxx 00
Xxxx Xxxxx, XX 00000
Attention: J. Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WPS RECEIVABLES CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: J. Xxxxxx Xxxxxxxx
Title: President
Address: 000 Xxxx 00xx Xxxxxx
Post Xxxxxx Xxx 00
Xxxx Xxxxx, XX 00000
Attention: J. Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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