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EXHIBIT 10.49
EXECUTION COPY
RECEIVABLES PURCHASE AGREEMENT
dated as of December 18, 1998
by and between
WESTPOINT ▇▇▇▇▇▇▇ INC.,
as Seller
and
WPS RECEIVABLES CORPORATION,
as Purchaser
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TABLE OF CONTENTS
Page
ARTICLE I
AGREEMENT TO PURCHASE AND SELL.................................... 2
1.1 Agreement to Purchase and Sell.................................................................... 2
1.2 Timing of Purchases............................................................................... 3
1.3 Consideration for Purchases....................................................................... 3
1.4 No Recourse....................................................................................... 3
1.5 No Assumption of Obligations Relating to
Receivables, Related Assets or Contracts.......................................................... 3
1.6 True Sales........................................................................................ 4
1.7 Savings Clause.................................................................................... 4
1.8 Addition of Sellers............................................................................... 4
1.9 Termination of Status as a Seller................................................................. 5
ARTICLE II
CALCULATION OF PURCHASE PRICE.................................... 6
2.1 Calculation of Purchase Price..................................................................... 6
2.2 Definitions and Calculations Related to Purchase
Price Percentage.................................................................................. 7
ARTICLE III
PAYMENT OF PURCHASE PRICE; SERVICING, ETC............................. 8
3.1 Purchase Price Payments........................................................................... 8
3.2 The WPS ▇▇▇▇▇ Note................................................................................ 9
3.3 Application of Collections and Other Funds........................................................ 10
3.4 Servicing of Receivables and Related Assets....................................................... 10
3.5 Payments and Computations, Etc.................................................................... 11
ARTICLE IV
CONDITIONS TO PURCHASES....................................... 11
4.1 Conditions Precedent to Initial Purchase.......................................................... 11
4.2 Certification as to Representations and
Warranties........................................................................................ 12
4.3 Effect of Payment of Purchase Price............................................................... 12
ARTICLE V
REPRESENTATIONS AND WARRANTIES.................................... 13
5.1 Representations and Warranties of Seller.......................................................... 13
5.2 Representations and Warranties of WPS ▇▇▇▇▇....................................................... 20
ARTICLE VI
GENERAL COVENANTS OF SELLER...................................... 20
6.1 Affirmative Covenants............................................................................. 20
6.2 Reporting Requirements............................................................................ 24
6.3 Negative Covenants................................................................................ 28
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Page
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE TRANSFERRED ASSETS................................. 31
7.1 Rights of WPS ▇▇▇▇▇............................................................................... 31
7.2 Responsibilities of Seller........................................................................ 32
7.3 Further Action Evidencing Purchases............................................................... 32
7.4 Collection of Receivables; Rights of WPS ▇▇▇▇▇ and Its Assignees.................................. 34
ARTICLE VIII
TERMINATION............................................. 35
8.1 Termination by Seller............................................................................. 35
8.2 Automatic Termination............................................................................. 35
ARTICLE IX
INDEMNIFICATION........................................... 35
9.1 Indemnities by Seller............................................................................. 35
9.2. Contribution...................................................................................... 37
ARTICLE X
MISCELLANEOUS............................................ 38
10.1 Amendments; Waivers, Etc......................................................................... 38
10.2 Notices, Etc..................................................................................... 38
10.3 Cumulative Remedies.............................................................................. 39
10.4 Binding Effect; Assignability; Survival of
Provisions....................................................................................... 39
10.5 Governing Law.................................................................................... 39
10.6 Costs, Expenses and Taxes........................................................................ 40
10.7 Consent to Jurisdiction; Waiver of Immunities.................................................... 40
10.8 Waiver of Jury Trial............................................................................. 41
10.9 Integration...................................................................................... 41
10.10 Execution in Counterparts....................................................................... 41
10.11 Acknowledgment and Consent...................................................................... 41
10.12 No Partnership or Joint Venture................................................................. 42
10.13 No Proceedings.................................................................................. 42
10.14 Severability of Provisions...................................................................... 42
10.15 Recourse to WPS ▇▇▇▇▇........................................................................... 43
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EXHIBITS
EXHIBIT 3.2 Form of WPS ▇▇▇▇▇ Note
SCHEDULES
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
APPENDICES
APPENDIX A Definitions
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THIS RECEIVABLES PURCHASE AGREEMENT (this "Purchase Agreement"), dated
as of December 18, 1998, is made by and between WestPoint ▇▇▇▇▇▇▇ Inc., a
Delaware corporation ("Seller"), and WPS Receivables Corporation, a Delaware
corporation ("WPS ▇▇▇▇▇"). 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 ▇▇▇▇▇ entered into a Receivables Purchase
Agreement dated as of December 10, 1993 and amended and restated as of May 27,
1994 (the "Original Purchase Agreement"), pursuant to which Seller agreed to
sell Receivables that it owned on December 10, 1993 and from time to time
thereafter owned, to WPS ▇▇▇▇▇, and WPS ▇▇▇▇▇ agreed to purchase such
Receivables from Seller from time to time; and
WHEREAS, Seller exercised its termination rights under Section 8.1 of
the Original Purchase Agreement and terminated such agreement;
WHEREAS, WPS ▇▇▇▇▇ continues to own all Receivable outstanding as of
the close of business on the Effective Date and conveyed pursuant to the
Original Purchase Agreement. (such Receivables, the "Previously Transferred
Receivables");
WHEREAS, Seller and WPS ▇▇▇▇▇ desire to enter into a new Receivables
Purchase Agreement pursuant to which Seller will sell Receivables that it owns
on the Effective Date and from time to time thereafter owns, to WPS ▇▇▇▇▇, and
WPS ▇▇▇▇▇ will purchase such Receivables from Seller on the Effective Date and
thereafter from time to time, in each case, on the terms and conditions set
forth herein; and
WHEREAS, concurrent with this Purchase Agreement, WPS ▇▇▇▇▇, as
Transferor, Seller, as Servicer, Blue Ridge Asset Funding Corporation, as
Transferee ("Blue Ridge"), and Wachovia Bank, N.A., as Administrator (the
"Administrator"), are entering into an Asset Interest Transfer Agreement
pursuant to which WPS ▇▇▇▇▇ will transfer to Blue Ridge an undivided interest in
Pool Receivables and Related Assets (as defined therein), in order to, among
other things, finance WPS ▇▇▇▇▇'▇ purchases hereunder.
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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 ▇▇▇▇▇, and WPS ▇▇▇▇▇
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 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
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(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 ▇▇▇▇▇) existing at the closing of its business on the
Effective Date automatically (and without further action by any Person) shall be
sold to WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ for all representations, warranties,
covenants and indemnities 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 ▇▇▇▇▇, 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
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obligation or liability is intended to be assumed hereunder by WPS ▇▇▇▇▇, the
Servicer, or any of their respective assigns, and any such assumption is
expressly disclaimed.
SECTION 1.6 True Sales. Seller and WPS ▇▇▇▇▇ intend the transfers of
Receivables hereunder to be true sales by Seller to WPS ▇▇▇▇▇ that are absolute
and irrevocable and that provide WPS ▇▇▇▇▇ with the full benefits of ownership
of the Receivables, and neither Seller nor WPS ▇▇▇▇▇ intends the transactions
contemplated hereunder to be, or for any purpose to be characterized as, loans
from WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ hereunder and any other
obligations owing to WPS ▇▇▇▇▇ hereunder. In the event this Purchase Agreement
shall be characterized as a security agreement and upon a default by Seller
hereunder, WPS ▇▇▇▇▇ 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.
SECTION 1.8 Addition of Sellers. Any Subsidiary of WestPoint ▇▇▇▇▇▇▇
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 ▇▇▇▇▇ if the Administrator (on behalf of Blue Ridge) consents to such
addition. WestPoint ▇▇▇▇▇▇▇ and its Subsidiary that is proposed to be added as a
Seller shall give to WPS ▇▇▇▇▇ 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 Blue Ridge) 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
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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 ▇▇▇▇▇ and the Administrator, that WPS
▇▇▇▇▇ 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 ▇▇▇▇▇▇▇) may
terminate its obligation to sell its Receivables and Related Assets to WPS ▇▇▇▇▇
if:
(i) such Seller (a "Terminating Seller") shall have given WPS
▇▇▇▇▇ 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.
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 ▇▇▇▇▇ and WPS ▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇▇)
to sell its Receivables and Related Assets to WPS ▇▇▇▇▇ shall terminate
immediately if such Seller ceases to be a Subsidiary of WestPoint ▇▇▇▇▇▇▇;
provided, however, that such termination shall not relieve such Seller of any of
its other
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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 ▇▇▇▇▇, the
Administrator and Seller, a Monthly Report with respect to WPS ▇▇▇▇▇'▇ 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).
On each day when Receivables are purchased by WPS ▇▇▇▇▇ 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
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to be purchased from Seller on such day,
calculated at the time of such Receivable's
generation and sale to WPS ▇▇▇▇▇,
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:
PPP = 100% - RRF
where:
PPP = the Purchase Price Percentage in effect on such
day
RRF = the Required Reserve Factor (expressed as a
percentage) determined as of the most recent
Reporting Date, pursuant to paragraph (b) below.
The Purchase Price Percentage and the Required Reserve Factor 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 ▇▇▇▇▇ through the next Reporting Date.
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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 ▇▇▇▇▇ pursuant to Article
I hereof, on the terms and subject to the conditions of this Purchase Agreement,
WPS ▇▇▇▇▇ shall pay to Seller the Purchase Price for the Receivables and Related
Assets purchased on such day, by WPS ▇▇▇▇▇ from Seller by (i) making a cash
payment to Seller to the extent that WPS ▇▇▇▇▇ has cash available to make such
payment pursuant to Section 3.3 and (ii) automatically increasing the principal
amount outstanding under Seller's WPS ▇▇▇▇▇ 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.
(b) Non-Complying Receivables and Dilution Adjustment. If on any day
(i) the Unpaid Balance of any Receivable sold to WPS ▇▇▇▇▇ by
Seller is:
(A) reduced as a result of any defective, rejected or
returned merchandise or services, any cash discount,
incorrect ▇▇▇▇▇▇▇▇, 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
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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 "NonComplying 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
(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 ▇▇▇▇▇ Note has been reduced to zero (or Seller no longer holds
the WPS ▇▇▇▇▇ Note), Seller shall pay to WPS ▇▇▇▇▇ in cash the amount of such
Noncomplying Receivables and Dilution Adjustment on the next succeeding Business
Day.
SECTION 3.2 The WPS ▇▇▇▇▇ Note.
(a) On the Effective Date, WPS ▇▇▇▇▇ shall deliver 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 ▇▇▇▇▇ Note"), which WPS
▇▇▇▇▇ Note shall be subordinated to all payments now or hereafter arising under
or in connection with the Asset Interest Transfer Agreement. The WPS ▇▇▇▇▇ Note
is payable in full on the date that is eighteen months after the Final Payout
Date under the Asset Interest Transfer Agreement. The WPS ▇▇▇▇▇ Note shall bear
interest at a rate per annum equal to the Prime Rate in effect on the most
recent Reporting Date. WPS ▇▇▇▇▇ may prepay all or part of the outstanding
balance of the WPS ▇▇▇▇▇ Note from time to time without any premium or penalty,
unless such prepayment would result in a default in WPS ▇▇▇▇▇'▇ payment of any
other amount required to be paid by it under any Transaction Document.
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(b) The Servicer shall hold the WPS ▇▇▇▇▇ Note for the benefit of
Seller, and shall make all appropriate recordkeeping entries with respect to the
WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ Note
at any time. Seller hereby irrevocably authorizes the Servicer to ▇▇▇▇ the WPS
▇▇▇▇▇ Note "CANCELLED" and to return the WPS ▇▇▇▇▇ Note to WPS ▇▇▇▇▇ upon the
final payment thereof.
SECTION 3.3 Application of Collections and Other Funds. If, on any day,
WPS ▇▇▇▇▇ receives (a) Collections that it is not required to hold in trust for,
or remit to, the Servicer or the Administrator pursuant to the Asset Interest
Transfer Agreement or (b) proceeds or transfers pursuant to the Asset Interest
Transfer Agreement, WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ from Seller
on the Effective Date or in the applicable Reporting Period, as the
case may be; and
(iii) third, in such order as WPS ▇▇▇▇▇ may elect, (A) to
repay amounts owed by WPS ▇▇▇▇▇ to Seller under the WPS ▇▇▇▇▇ Note, or
(B) 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 ▇▇▇▇▇'▇ ownership, as between the parties to this Purchase Agreement,
of the Receivables and the Related Assets, WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ shall assign to the
Administrator (for the benefit of Blue Ridge) the rights and interests granted
by Seller to WPS ▇▇▇▇▇ 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 Asset Interest Transfer Agreement, the
Administrator may only exercise such rights in the place of WPS ▇▇▇▇▇ (as
assignee or otherwise) following the designation of a Servicer other than
WestPoint ▇▇▇▇▇▇▇ pursuant to Section 8.01 of the Asset Interest Transfer
Agreement or upon the occurrence and during the continuance of a Liquidation
Event.
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SECTION 3.5 Payments and Computations, Etc. All amounts to be paid by
Seller to WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ shall from time to time
specify in writing. Payments received by WPS ▇▇▇▇▇ 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 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 ▇▇▇▇▇, on demand, interest on all amounts not paid
when due hereunder at 1.0% per annum above the interest rate on the WPS ▇▇▇▇▇
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 initial
purchase hereunder is subject to the conditions precedent that (i) each of the
conditions precedent to the execution, delivery and effectiveness of each other
Transaction Document (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 ▇▇▇▇▇, and (ii) WPS ▇▇▇▇▇
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 ▇▇▇▇▇:
(a) Seller Assignment Certificate. A Seller Assignment
Certificate in the form of Exhibit 4.1(a) from Seller, duly completed,
executed and delivered by Seller;
(b) 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 ▇▇▇▇▇, certified by its Secretary or
Assistant Secretary, each as of a recent date acceptable to WPS ▇▇▇▇▇;
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(c) 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;
(d) 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;
(e) Other Transaction Documents. Original copies, executed by
each of the parties thereto in such reasonable number as shall be
specified by WPS ▇▇▇▇▇, of each of the other Transaction Documents to
be executed and delivered in connection herewith; and
(f) Opinions of Counsel. The following opinions of counsel
each in form and substance satisfactory to WPS ▇▇▇▇▇: (i) opinions of
Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to Seller as to
enforceability and UCC validity matters and true sale and
non-consolidation, and (ii) opinions of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇,
as to Georgia tax and UCC perfection and priority matters.
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 ▇▇▇▇▇ 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 ▇▇▇▇▇, whether or not
the conditions precedent to such Purchase were in fact satisfied; provided,
however, that WPS ▇▇▇▇▇ 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.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 Representations and Warranties of Seller. In order to
induce WPS ▇▇▇▇▇ to enter into this Purchase Agreement and to make purchases
hereunder, 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.
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(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 ▇▇▇▇▇
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 Claim arising
solely as a result of any action taken by WPS ▇▇▇▇▇ hereunder (or by
the Administrator on behalf of Blue Ridge under the Asset Interest
Transfer Agreement); 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
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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 Related
Assets by Seller to WPS ▇▇▇▇▇, 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.
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(i) Financial Condition. WestPoint ▇▇▇▇▇▇▇ Inc. hereby
represents that its consolidated balance sheets as at December 31,
1997, and the related statements of income and shareholders' equity of
WestPoint ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇,
fairly present the consolidated financial condition and business of
WestPoint ▇▇▇▇▇▇▇ Inc. and its Consolidated Subsidiaries as at such
date and the consolidated results of the operations of WestPoint
▇▇▇▇▇▇▇ and its Consolidated Subsidiaries for the period ended on such
date, all in accordance with GAAP consistently applied throughout the
periods reflected therein, and 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 ▇▇▇▇▇ hereunder, each Receivable and Related Asset of
Seller which is then to be transferred to WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ hereunder or by the Administrator on behalf of
Blue Ridge under the Asset Interest Transfer Agreement); 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 ▇▇▇▇▇ and its successors in such Receivables
and Related Assets against all creditors of, and purchasers
from, Seller.
(ii) Whenever WPS ▇▇▇▇▇ 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
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(other than any Adverse Claim arising solely as the result of
any action taken by WPS ▇▇▇▇▇ hereunder or by the
Administrator on behalf of Blue Ridge under the Asset Interest
Transfer Agreement).
(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 ▇▇▇▇▇ pursuant to this Purchase
Agreement and, (C) in favor of the Administrative Agent for
the benefit of Blue Ridge, in accordance with the Asset
Interest Transfer Agreement.
(iv) No purchase of an interest in any Receivable or
Related Asset of Seller by WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ hereunder shall constitute property
of Seller.
(l) Eligible Receivables. On the date of each Monthly 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 ▇▇▇▇▇, the Servicer or the Administrative Agent 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.
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(n) Offices. The principal place of business and chief
executive office of Seller is located at the address set forth under
Seller's signature hereto, and 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) (or at such other locations, notified to the Servicer and the
Administrative Agent in accordance with Section 6.1(f), 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 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 ▇▇▇▇▇. Seller has not granted any
Person, other than WPS ▇▇▇▇▇ 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 LockBox 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
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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).
(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) Year 2000 Compliance. Seller has conducted a review and
assessment of its and its Subsidiaries' computer applications and made
inquiry of its key suppliers, vendors and customers with respect to the
Year 2000 Problem and, based on that review and inquiry, Seller
reasonably believes that the Year 2000 Problem will not result in a
Material Adverse Effect.
(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 ▇▇▇▇▇ 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 ▇▇▇▇▇. Seller owns, directly or
indirectly, 100% of the issued and outstanding capital stock of WPS
▇▇▇▇▇, free and clear of any Adverse Claim. Such capital stock is
validly issued, fully paid and nonassessable, and there are no options,
warrants or other rights to acquire securities of WPS ▇▇▇▇▇.
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(x) Material Agreements. The Agreements listed on Schedule A
to the opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP of even date herewith are
all of the agreements relating to the financing of the Seller.
(y) Pay-Off of Previous Securitization. WestPoint ▇▇▇▇▇▇▇
Inc., in its capacity as servicer under the Amended and Restated
Pooling and Servicing Agreement, dated as of December 10, 1993 and
amended and restated as of May 27, 1994, by and among WPS ▇▇▇▇▇,
WestPoint ▇▇▇▇▇▇▇, Inc., as servicer, and The Chase Manhattan Bank, as
successor in interest to Chemical Bank, as trustee, has computed the
amounts necessary to satisfy in full all obligations due thereunder and
under the related transaction documents in order to provide for the
termination of such agreement and the trust created thereby (including,
without limitation, all fees, expenses and prepayment premiums) and
such computation is true and correct.
SECTION 5.2 Representations and Warranties of WPS ▇▇▇▇▇. From the date
hereof until the Purchase Termination Date, WPS ▇▇▇▇▇ hereby represents and
warrants that (a) (i) this Purchase Agreement has been duly executed and
delivered by WPS ▇▇▇▇▇ and (ii) constitutes WPS ▇▇▇▇▇'▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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
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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 Administrator,
on Blue Ridge's behalf, reasonably 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 ▇▇▇▇▇ 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 or
the Administrator ▇▇▇▇▇ and its agents or representatives shall be
entitled to conduct Seller Receivables Reviews whenever WPS ▇▇▇▇▇, in
its reasonable judgment, deems a Seller Receivables Review appropriate.
The costs and expenses of one such Seller Receivables Review in any one
calendar year shall be paid by Seller, and the costs and expenses of
any additional Seller Receivables Review during such calendar year
shall be paid by WPS ▇▇▇▇▇ 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
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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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 stoppage in transit of any merchandise, the sale of
which has given rise to a Receivable that has been purchased by WPS
▇▇▇▇▇.
(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 ▇▇▇▇▇, 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
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in the aggregate for all such failures, could reasonably be expected to
have a Material Adverse Effect.
(h) Separate Corporate Existence of WPS ▇▇▇▇▇. Seller hereby
acknowledges that the Administrator, on behalf of Blue Ridge, is
entering into the transactions contemplated by the Asset Interest
Transfer Agreement in reliance upon WPS ▇▇▇▇▇'▇ 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 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 ▇▇▇▇▇ and that WPS ▇▇▇▇▇ 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 by WPS ▇▇▇▇▇ 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
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 ▇▇▇▇▇ 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
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Lien has been imposed upon any Receivables or Related Assets.
(k) Reserved
(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 ▇▇▇▇▇, 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) Year 2000 Compliance. Seller will use its best efforts to
meet the milestones contained in its Year 2000 Plan and will use its
best efforts to have all of its and its Subsidiaries hardware and
software systems Year 2000 Compliant and Ready (including all internal
and external testing) on or before June 30, 1999.
(o) Ownership Interest of WPS ▇▇▇▇▇. Seller shall take all
necessary action to establish and maintain, in favor of WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ 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
▇▇▇▇▇'▇ 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 ▇▇▇▇▇ or its assigns as WPS ▇▇▇▇▇ or its assigns may
reasonably request).
SECTION 6.2 Reporting Requirements. From the Effective Date until the
first day following the Purchase Termination Date
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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 ▇▇▇▇▇ and the Administrator, on behalf of
Blue Ridge, shall otherwise give prior written consent, furnish to WPS ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇, copies of the unaudited consolidated balance sheets
of WestPoint ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇;
(b) Annual Financial Statements. As soon as possible and in
any event within 95 days after the end of each fiscal year of WestPoint
▇▇▇▇▇▇▇, a copy of the consolidated balance sheet of WestPoint ▇▇▇▇▇▇▇
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 ▇▇▇▇▇▇▇ 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 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
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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 ▇▇▇▇▇ and (ii) any
judgment, settlement or other final disposition with respect to any
such previously disclosed litigation, investigation or proceeding;
(f) Reserved
(g) Year 2000 Notices. Seller will deliver to WPS ▇▇▇▇▇:
i. Simultaneously with the delivery of each set of
annual and quarterly financial statements referred to
in subsections (a) and (b) above, a statement of the
chief executive officer, chief financial officer,
controller, treasurer, assistant treasurer or chief
technology officer to the effect that nothing has
come to their attention to cause them to believe that
Seller's Year 2000 Plan milestones have not been met
in a manner such that Seller's and its Subsidiaries'
hardware and software systems will not be Year 2000
Compliant and Ready in accordance with its Year 2000
Plan; and
ii. Within five (5) Business Days after Seller
becomes aware of any deviations from its Year 2000
Plan which would cause compliance with such Year 2000
Plan to be delayed or not achieved, a statement of
the chief executive officer, chief financial officer,
controller, treasurer, assistant treasurer or chief
technology officer setting forth the details thereof
and the action which Seller is taking or proposes to
take with respect thereto.
(h) Reports to Holders and Exchanges. In addition to the
reports required by subsections (a), and (b) above, promptly upon WPS
▇▇▇▇▇'▇ request, Seller will furnish to WPS ▇▇▇▇▇ copies of any reports
specified in such request which Seller sends to any of its
securityholders, and any
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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,
(i) ERISA. Promptly after the filing or receiving thereof,
Seller will furnish to WPS ▇▇▇▇▇ 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 and in
any event by the end of each fiscal year of Seller, Seller will furnish
to WPS ▇▇▇▇▇ a report, prepared by a Person reasonably acceptable to
WPS ▇▇▇▇▇ as of the end of such fiscal year, substantially in the form
of the report delivered pursuant to Section 5.01(l) of the Asset
Interest Transfer Agreement and covering such other matters as WPS
▇▇▇▇▇ may reasonably request in order to protect the interests of WPS
▇▇▇▇▇ under or as contemplated by this Purchase Agreement; provided
that Seller shall not be required to furnish a report pursuant to this
Section 6.2(i) for its fiscal year ending December 31, 1999 unless the
Scheduled Maturity Date shall have been extended during such year
pursuant to Section 1.06 of the Asset Interest Transfer 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ may from time to time reasonably
request in
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order to protect the interests of WPS ▇▇▇▇▇, the Administrative Agent
or Blue Ridge under or as contemplated by this Purchase Agreement.
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 ▇▇▇▇▇ 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 Asset Interest Transfer Agreement, 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 Asset Interest Transfer Agreement, and other
Adverse Claims permitted by any other Transaction Document), WPS ▇▇▇▇▇
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 ▇▇▇▇▇ shall be entitled to
indemnification for any such expenditures pursuant to the
indemnification provisions of Article IX. Alternatively, WPS ▇▇▇▇▇ 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 ▇▇▇▇▇'▇ or the Administrator's rights therein (except in its
capacity as Servicer and then only to the extent permitted
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under Section 8.02(c) of the Asset Interest Transfer Agreement) 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 interests or remedies of WPS ▇▇▇▇▇'▇
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 ▇▇▇▇▇ 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 ▇▇▇▇▇
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 ▇▇▇▇▇ 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 ▇▇▇▇▇
and the Administrator notice of any such permitted merger or
consolidation promptly following completion thereof. Seller will not,
directly or indirectly, transfer, assign, convey
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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.
(e) Change in Name. Seller will not (i) change its corporate
name, any trade name or corporate structure 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 9-402(7) of an
applicable enactment of the UCC, in each case unless Seller shall have
given WPS ▇▇▇▇▇, 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
▇▇▇▇▇ to amend its Certificate of Incorporation or Bylaws without the
prior written consent of WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ and the Administrator 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 ▇▇▇▇▇, 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 ▇▇▇▇▇.
(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 ▇▇▇▇▇, duly endorsed.
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(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 LockBox 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 ▇▇▇▇▇, the Servicer and the
Administrator (following which notice, WPS ▇▇▇▇▇ 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 ▇▇▇▇▇.
(a) Subject to Section 7.4(b), Seller hereby authorizes WPS ▇▇▇▇▇, the
Servicer and/or their respective designees to take any and all steps in Seller's
name and on behalf of Seller that WPS ▇▇▇▇▇, 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 ▇▇▇▇▇ shall have
no obligation to account for, to replace, to substitute or to return any
Transferred Asset to Seller. WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ shall have the unrestricted right to further assign,
transfer, deliver, hypothecate, subdivide or otherwise deal with the Transferred
Assets, and all of WPS ▇▇▇▇▇'▇ right, title and interest in, to and under this
Purchase Agreement, on whatever terms WPS ▇▇▇▇▇ shall determine, pursuant to the
Asset Interest Transfer Agreement or otherwise.
(d) WPS ▇▇▇▇▇ shall have the sole right to retain any gains or profits
created by buying, selling or holding the Transferred
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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
▇▇▇▇▇'▇ 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
▇▇▇▇▇ 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 ▇▇▇▇▇ or its designee or assignee of WPS ▇▇▇▇▇'▇
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 ▇▇▇▇▇ 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
▇▇▇▇▇ (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 ▇▇▇▇▇ and the Administrator with such
licenses, sublicenses and/or assignments of contracts as WPS ▇▇▇▇▇ 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
▇▇▇▇▇ of the Receivables and the Related Assets under this Purchase Agreement,
or to enable WPS ▇▇▇▇▇ to exercise or enforce any of its rights hereunder or
under any other Transaction
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Document. Seller further agrees that from time to time, at its expense, it will
promptly, upon request, take all action that WPS ▇▇▇▇▇, 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 ▇▇▇▇▇ or the Administrator, on Blue Ridge's behalf (as the assignee of WPS
▇▇▇▇▇), 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 ▇▇▇▇▇, 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 ▇▇▇▇▇ 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 RECEIVABLES PURCHASE
AGREEMENT, DATED AS OF DECEMBER 18, 1998, BETWEEN WESTPOINT
▇▇▇▇▇▇▇ INC. AND WPS RECEIVABLES CORPORATION; AND SUCH
RECEIVABLES HAVE BEEN TRANSFERRED TO WACHOVIA BANK, N.A., AS
ADMINISTRATOR ON BEHALF OF BLUE RIDGE ASSET FUNDING
CORPORATION PURSUANT TO AN ASSET INTEREST TRANSFER AGREEMENT,
DATED AS OF DECEMBER 18, 1998, AMONG WPS RECEIVABLES
CORPORATION, AS TRANSFEROR, WESTPOINT ▇▇▇▇▇▇▇ INC., AS INITIAL
SERVICER, BLUE RIDGE ASSET FUNDING CORPORATION, AS TRANSFEREE
AND WACHOVIA BANK, N.A., AS ADMINISTRATOR."
Seller hereby authorizes WPS ▇▇▇▇▇ or its designee to file one or more
financing or continuation statements, and amendments thereto and assignments
thereof, relative to all or any of the Receivables 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 ▇▇▇▇▇ in good faith
reasonably believes that the performance of such agreements and obligations is
necessary or appropriate to protect the interests of WPS ▇▇▇▇▇ under this
Purchase Agreement, then WPS ▇▇▇▇▇ or its designee may (but shall not be
required to) perform, or cause performance of,
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such agreement or obligation and the reasonable expenses of WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ and Its
Assignees.
(a) Seller hereby transfers to WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ or
the Administrator (as assignee of WPS ▇▇▇▇▇) may reasonably request in order to
effect or complete such transfer.
(b) WPS ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇. In
addition, Seller hereby authorizes WPS ▇▇▇▇▇ 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 ▇▇▇▇▇, 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 Blue
Ridge's behalf, may exercise any of the foregoing rights in the place of WPS
▇▇▇▇▇ (as assignee or otherwise) at any time following the designation of a
Servicer other than WestPoint ▇▇▇▇▇▇▇ pursuant to Section 8.01 of the Asset
Interest Transfer Agreement 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 ▇▇▇▇▇▇▇ has been
designated pursuant to Section 8.01 of the Asset Interest Transfer Agreement,
Seller shall, at WPS ▇▇▇▇▇'▇ 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
▇▇▇▇▇ or the Administrator at a place selected by the Administrator or its
designee.
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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 ▇▇▇▇▇ by
giving WPS ▇▇▇▇▇ and the Administrator not less than thirty Business Days' prior
written notice of Seller's election not to continue to sell Receivables to WPS
▇▇▇▇▇. Upon receipt of a termination notice from Seller, WPS ▇▇▇▇▇ shall notify
the Administrator and Blue Ridge that it is electing to reduce the Transferee's
Total Investment to zero pursuant to Section 3.02 of the Asset Interest Transfer
Agreement 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 ▇▇▇▇▇ to purchase Receivables
from Seller hereunder, shall terminate automatically as a result of a bankruptcy
proceeding being filed by or against Seller or WPS ▇▇▇▇▇.
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 ▇▇▇▇▇, each of its
successors, permitted transferees and assigns, 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 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 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
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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 ▇▇▇▇▇ 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 ▇▇▇▇▇ pursuant to
this Purchase Agreement or in favor of the Administrator on behalf of
Blue Ridge pursuant to the Asset Interest Transfer Agreement), 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 ▇▇▇▇▇ 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 jurisdiction 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
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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 ▇▇▇▇▇
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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 Asset Interest
Transfer Agreement), (v) to the 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
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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 ▇▇▇▇▇ and Seller (with respect to an amendment) or by
WPS ▇▇▇▇▇ (with respect to a waiver or consent by it) and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. This Purchase Agreement shall not be amended unless WPS
▇▇▇▇▇ shall have delivered the proposed amendment to the Administrative Agent at
least ten Business Days (or such shorter period as shall be acceptable to the
Administrative Agent) prior to the execution and delivery thereof.
(b) No failure or delay on the part of WPS ▇▇▇▇▇, any RPA Indemnified
Party, or the Administrative Agent or any other third party beneficiary referred
to in Section 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 ▇▇▇▇▇ or the Administrative Agent 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
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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 Administrative Agent at its address for notices set forth in
the Asset Interest Transfer Agreement. 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 ▇▇▇▇▇, at any time and from time to
time, to the fullest extent permitted by law, to set-off, against any
Obligations of WPS ▇▇▇▇▇ to Seller that are then due and payable or that are not
then due and payable by WPS ▇▇▇▇▇ to Seller but have then accrued, any and all
indebtedness or other obligations (i) at any time owing to WPS ▇▇▇▇▇ by Seller
or (ii) that are not then due and payable from WPS ▇▇▇▇▇ 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
▇▇▇▇▇, 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 ▇▇▇▇▇ and of the Administrator (on Blue Ridge's behalf).
This Purchase Agreement shall create and constitute the continuing obligations
of the parties hereto in 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 Asset Interest
Transfer Agreement, 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 INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAWS
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PRINCIPLES, EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE INTERESTS OF WPS
▇▇▇▇▇ 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
▇▇▇▇▇ or any successor in interest to WPS ▇▇▇▇▇; 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:
(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 ▇▇▇▇▇▇ 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
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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 CONNECTION 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 ▇▇▇▇▇ is
selling, transferring, assigning, setting over and otherwise conveying to the
Administrator on behalf of Blue Ridge an Asset Interest in the outstanding pool
of Receivables and Related Assets sold by Seller to WPS ▇▇▇▇▇ from time to time
pursuant to this Purchase Agreement. Seller hereby consents to the sale,
transfer, assignment, set over and conveyance to the Administrator on behalf of
Blue Ridge by WPS ▇▇▇▇▇ of the Asset Interest, and all of WPS ▇▇▇▇▇'▇ rights,
remedies, powers and privileges, and all claims of WPS ▇▇▇▇▇ 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 ▇▇▇▇▇,
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,
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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 ▇▇▇▇▇ may do. Each of the parties hereto acknowledges and
agrees that the Administrator (on behalf of Blue Ridge) and Blue Ridge are third
party beneficiaries of the rights of WPS ▇▇▇▇▇ 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.
(b) Seller hereby agrees to execute all agreements, instruments and
documents, and to take all other action, that WPS ▇▇▇▇▇ or the Administrator
reasonably determines is necessary or appropriate to evidence its consent
described in paragraph (a) above. To the extent that WPS ▇▇▇▇▇, individually or
through the Servicer, has granted or grants powers of attorney to the
Administrator under the Asset Interest Transfer Agreement, Seller hereby grants
a corresponding power of attorney on the same terms to WPS ▇▇▇▇▇. Seller hereby
acknowledges and agrees that WPS ▇▇▇▇▇, in all of its capacities, shall assign
to the Administrator for the benefit of Blue Ridge such powers of attorney and
other rights and interests granted by Seller to WPS ▇▇▇▇▇ hereunder and agrees
to cooperate fully with the Administrator 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 ▇▇▇▇▇ or Blue Ridge, or join any other Person in
instituting against WPS ▇▇▇▇▇ 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 ▇▇▇▇▇
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
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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.
SECTION 10.15 Recourse to WPS ▇▇▇▇▇. Except to the extent expressly
provided otherwise in the Transaction Documents, the obligations of WPS ▇▇▇▇▇
under the Transaction Documents to which it is a party are solely the
obligations of WPS ▇▇▇▇▇, and no recourse shall be had for payment of any fee
payable by or other obligation of or claim against WPS ▇▇▇▇▇ that arises out of
any Transaction Document to which WPS ▇▇▇▇▇ is a party against any director,
officer or employee of WPS ▇▇▇▇▇. The provisions of this Section 10.15 shall
survive the termination of this Purchase Agreement.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties have caused this Receivables Purchase
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
WESTPOINT ▇▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Controller
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Post ▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WPS RECEIVABLES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President/Assistant Treasurer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Post ▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇