Exhibit 99.2
SECOND AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
dated as of March 28, 2003
by and between
WESTPOINT ▇▇▇▇▇▇▇ INC., as Seller and as Initial Servicer,
and
WPS RECEIVABLES CORPORATION, as Purchaser
TABLE OF CONTENTS
Page
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ARTICLE I AGREEMENT TO PURCHASE AND SELL..................................................................6
1.1 Agreement to Purchase and Sell.........................................................6
1.2 Timing of Purchases....................................................................6
1.3 Consideration for Purchases............................................................7
1.4 No Recourse............................................................................7
1.5 No Assumption of Obligations Relating to
Receivables, Related Assets or Contracts...............................................7
1.6 True Sales.............................................................................7
1.7 Savings Clause.........................................................................7
1.8 Addition of Sellers....................................................................7
1.9 Termination of Status as a Seller......................................................8
ARTICLE II CALCULATION OF PURCHASE PRICE...................................................................9
2.1 Delivery of Reports....................................................................9
2.2 Calculation of Purchase Price..........................................................9
2.3 Definitions and Calculations Related to Purchase Price Percentage.....................10
ARTICLE III PAYMENT OF PURCHASE PRICE; SERVICING, ETC......................................................10
3.1 Purchase Price Payments...............................................................10
3.2 The WPS ▇▇▇▇▇ Note....................................................................12
3.3 Application of Collections and Other Funds............................................12
3.4 Servicing of Receivables and Related Assets...........................................13
3.5 Payments and Computations, Etc........................................................13
ARTICLE IV CONDITIONS TO PURCHASES........................................................................14
4.1 Conditions Precedent to Initial Purchase..............................................14
4.2 Certification as to Representations and Warranties....................................14
4.3 Effect of Payment of Purchase Price...................................................14
ARTICLE V REPRESENTATIONS AND WARRANTIES.................................................................15
5.1 Representations and Warranties of Seller..............................................15
5.2 Representations and Warranties of WPS ▇▇▇▇▇...........................................20
ARTICLE VI GENERAL COVENANTS OF SELLER....................................................................20
6.1 Affirmative Covenants.................................................................20
6.2 Reporting Requirements................................................................23
6.3 Negative Covenants....................................................................25
ARTICLE VII ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT
OF THE TRANSFERRED ASSETS......................................................................28
7.1 Rights of WPS ▇▇▇▇▇...................................................................28
7.2 Responsibilities of Seller............................................................28
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7.3 Further Action Evidencing Purchases...................................................29
7.4 Collection of Receivables; Rights of WPS ▇▇▇▇▇ and Its Assignees......................30
ARTICLE VIII TERMINATION....................................................................................31
8.1 Termination by Seller.................................................................31
8.2 Automatic Termination.................................................................31
ARTICLE IX INDEMNIFICATION................................................................................31
9.1 Indemnities by Seller.................................................................31
9.2 Contribution..........................................................................33
ARTICLE X MISCELLANEOUS..................................................................................33
10.1 Amendments; Waivers, Etc..............................................................33
10.2 Notices, Etc..........................................................................34
10.3 Cumulative Remedies...................................................................34
10.4 Binding Effect; Assignability; Survival of Provisions.................................34
10.5 Governing Law.........................................................................35
10.6 Costs, Expenses and Taxes.............................................................35
10.7 Consent to Jurisdiction; Waiver of Immunities.........................................35
10.8 Waiver of Jury Trial..................................................................36
10.9 Integration...........................................................................36
10.10 Execution in Counterparts.............................................................36
10.11 Acknowledgment and Consent............................................................36
10.12 No Partnership or Joint Venture.......................................................37
10.13 No Proceedings........................................................................37
10.14 Severability of Provisions............................................................38
10.15 Recourse to WPS ▇▇▇▇▇.................................................................38
10.16 Confirmation and Ratification of Terms................................................38
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ATTACHMENTS
Appendix A Definitions
Exhibit 3.2 Form of WPS ▇▇▇▇▇ Note
Schedule 5.1(f) Litigation and Other Proceedings
Schedule 5.1(n) Chief Executive Office of Seller; Offices of Seller Where
Records Are Maintained; Locations of Returned Goods
Schedule 5.1(o) Lock-Boxes; Lock-box Banks and Accounts; Concentration
Banks and Accounts
Schedule 5.1(q) Legal Names
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SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this
"Purchase Agreement"), dated as of March 28, 2003, is made by and between
WESTPOINT ▇▇▇▇▇▇▇ INC., a Delaware corporation, in its capacity as seller (in
such capacity, "Seller"), WESTPOINT ▇▇▇▇▇▇▇ INC., a Delaware corporation, in its
capacity as initial servicer (in such capacity, "WestPoint"), and WPS
RECEIVABLES CORPORATION, a Delaware corporation, as purchaser ("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 First Amended and Restated
Receivables Purchase Agreement, dated as of October 31, 2001 (as amended, the
"Existing Purchase Agreement"), pursuant to which Seller agreed to sell
Receivables that it owned on October 31, 2001 and from time to time thereafter
owned, to WPS ▇▇▇▇▇, and WPS ▇▇▇▇▇ agreed to purchase such Receivables from
Seller from time to time;
WHEREAS, WPS ▇▇▇▇▇, as transferor, WestPoint, as initial servicer, Blue
Ridge Asset Funding Corporation, as transferee ("Blue Ridge"), Wachovia Bank,
N.A., as administrator ("Administrator"), and North American Capacity Insurance
Company, as insurer, entered into a First Amended and Restated Asset Interest
Transfer Agreement, dated as of October 31, 2001, as amended (the "AITA"),
pursuant to which WPS ▇▇▇▇▇ agreed to sell Receivables that it owned on October
31, 2001 and from time to time thereafter owned, to Blue Ridge, and Blue Ridge
agreed to purchase such Receivables from WPS ▇▇▇▇▇ from time to time;
WHEREAS, WPS ▇▇▇▇▇ has entered or is about to enter into financing
arrangements with Congress Financial Corporation (Southern), a Georgia
corporation, in its capacity as agent (in such capacity, "Agent") for Lenders
(as hereinafter defined), and the parties from time to time to the Loan
Agreement (as hereinafter defined) as lenders (each individually, a "Lender"
and, collectively, "Lenders"), pursuant to which Lenders (or Agent on behalf of
Lenders) may make loans and advances and provide other financial accommodations
to WPS ▇▇▇▇▇ as set forth in the Loan and Security Agreement, dated of even date
herewith, by and among Agent, The CIT Group/Commercial Services, Inc., as
co-agent, Lenders, WPS ▇▇▇▇▇ and WestPoint (as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement"), and the other agreements, documents and
instruments referred to therein or at any time executed and/or delivered in
connection therewith or related thereto (all of the foregoing, together with the
Loan Agreement, as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, being collectively
referred to herein as the "Financing Agreements");
WHEREAS, WPS ▇▇▇▇▇ continues to own all Receivables outstanding as of
the close of business on the date hereof and previously conveyed by Seller to
WPS ▇▇▇▇▇ pursuant to the
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Existing Purchase Agreement (such Receivables, the "Previously Transferred
Receivables"); and
WHEREAS, WPS ▇▇▇▇▇ will use the initial proceeds of the loans provided
by Agent and Lenders to WPS ▇▇▇▇▇ under the Loan Agreement to pay the purchase
price to repurchase the interests of Administrator, Blue Ridge and Insurer, as
existing secured parties under the AITA, in the Previously Transferred
Receivables and Related Assets;
WHEREAS, the parties hereto have agreed to amend and restate the
Existing Purchase Agreement in its entirety, subject to the terms and conditions
hereof;
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
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 hereof), 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 hereof, 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 until, but excluding, the Purchase Termination Date, and
(c) all Related Assets.
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 hereof, 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.
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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 hereof.
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.
1.5 No Assumption of Obligations Relating to Receivables, Related
Assets or Contracts. Neither WPS ▇▇▇▇▇, nor Servicer, nor any of their
respective assigns, shall have any obligation or liability to any Obligor or
other customer or client of Seller (including any obligation to perform any of
the obligations of Seller under any Receivable, related Contracts or any other
related purchase orders or other agreements). No such obligation or liability is
intended to be assumed hereunder by WPS Finco, Servicer, or any of their
respective assigns, and any such assumption is expressly disclaimed.
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.
1.7 Savings Clause. If, notwithstanding the intention of the
parties expressed in Section 1.6 hereof, 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 Assets, 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 and may
be exercised alternatively, successively or concurrently on any one or more
occasions.
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
Agent (on behalf of itself and Lenders) consents to such addition. WestPoint and
its Subsidiary that is proposed to be added as a Seller shall give to WPS ▇▇▇▇▇
and Agent no less than forty-five (45) days' prior written notice of the
effective date of the addition of such Subsidiary as a Seller, and such
Subsidiary shall provide Agent (on
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behalf of itself and Lenders) with reasonable access to its officers and to its
books, records and accounting systems to enable Agent to conduct a due diligence
review of the accounts receivable and accounting systems of such Subsidiary.
Upon Agent granting its consent to the proposed addition, such addition shall
become effective on the first Business Day following the date on which the
Subsidiary and the parties hereto shall have executed and delivered such
agreements, instruments and other documents and such amendments or other
modifications to the Transaction Documents, in form and substance reasonably
satisfactory to WPS ▇▇▇▇▇ and Agent, that WPS ▇▇▇▇▇ or Agent reasonably
determines are necessary or appropriate to effect such addition.
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 (30) 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;
(iii) as of the date of such termination by the
Terminating Seller and after giving effect thereto, Excess Availability shall
have been not less than $5,000,000 for each of the immediately preceding thirty
(30) consecutive days;
(iv) both immediately before and after giving
effect to such termination by the Terminating Seller, no Default or Event of
Default shall have occurred and be continuing or shall reasonably be expected to
occur.
(b) Any termination by a Seller pursuant to 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 (a)(iv) 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 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 Seller Obligations, to the extent such Seller Obligations relate to
Receivables (and Related Assets with respect thereto) originated by such Seller
prior to the effective date of such termination.
(c) 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 Seller Obligations, to the extent such Seller Obligations relate to
Receivables (and Related Assets with respect thereto) originated by such Seller
prior to the
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effective date of such termination.
ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1 Delivery of Reports. Servicer shall deliver to WPS ▇▇▇▇▇,
Seller and Agent with respect to WPS ▇▇▇▇▇'▇ purchases of Receivables from
Seller the following documents:
(a) on the Effective Date, a Monthly Receivables Report
with respect to WPS ▇▇▇▇▇'▇ purchases of Receivables from Seller that are to be
made on the Effective Date, duly completed and executed by the chief financial
officer, treasurer or controller of Servicer (including a schedule of all
Accounts created, collections received and credit memos issued for each day of
the immediately preceding month) and an aging of accounts receivable;
(b) as soon as possible after the last day of each week
(but in any event by the close of business in Atlanta, Georgia on the first
Tuesday after the end of each week or if such day is not a Business Day, then
the immediately following Business Day), or more frequently as Agent may request
at any time that a Default or Event of Default shall exist or have occurred and
be continuing, an Interim Receivables Report for the immediately preceding week,
duly completed and executed by the chief financial officer, treasurer or
controller of Servicer; and
(c) as soon as possible after the end of each fiscal
month (but in any event by the close of business in Atlanta, Georgia on the
tenth (10th) day after the end of each such fiscal month), or more frequently as
Agent may request at any time a Default or Event of Default shall exist or have
occurred and be continuing, a Monthly Receivables Report for the immediately
preceding month, duly completed and executed by the chief financial officer,
treasurer or controller of Servicer (including a schedule of all Accounts
created, collections received and credit memos issued for each day of the
immediately preceding month) and an aging of accounts receivable.
2.2 Calculation of Purchase Price. 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,
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"Aggregate Unpaid Balance" shall mean (i) for
purposes of calculating the Purchase Price to be paid
to Seller on the Effective Date, the sum of the
Unpaid Balances of each Receivable generated by
Seller, as measured as at the closing of Seller's
business on the Effective Date, and (ii) for purposes
of calculating the Purchase Price to be paid to
Seller on each Business Day thereafter, the sum of
the Unpaid Balances of each Receivable to be
purchased from Seller on such day, calculated at the
time of such Receivable's generation and sale to WPS
▇▇▇▇▇, and
PPP = the Purchase Price Percentage applicable to the
Receivables purchased from Seller on such day, as
determined pursuant to Section 2.3 hereof.
2.3 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% - PD
where:
PPP = the Purchase Price Percentage in effect on such day,
and
PD = the Purchase Discount (expressed as a percentage),
which shall mean for any day, an amount, calculated
in good faith by WPS ▇▇▇▇▇, equal to the product of
(i) the sum of (A) the LIBOR Rate, and (B) 5%, and
(ii) a fraction, the numerator of which is the
estimated maturity period of the Receivables and the
denominator of which is 360, determined pursuant to
subsection (b) below.
(b) The Purchase Price Percentage and the Purchase
Discount shall be recomputed by Servicer on the first Business Day of each
fiscal month, and such recomputed amounts shall be used for purposes of
calculating the Purchase Price payable to Seller for Receivables sold to WPS
▇▇▇▇▇ through the end of such fiscal month.
ARTICLE III
PAYMENT OF PURCHASE PRICE; SERVICING, ETC.
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 hereof and (ii)
automatically increasing
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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) 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 Receivables
Report or Interim Receivables
Report (for any reason other than
such Receivable being paid by the
Obligor thereof or becoming a
Defaulted Receivable), or
(ii) the representations and warranties made by
Seller in Section 5.1(k) hereof with respect to such Receivable were not true
when made, then, the Purchase Price payable to Seller on the next Business Day
or Days shall be reduced as follows (such reduction, a "Non-Complying
Receivables and Dilution Adjustment"):
(A) in the case of clause (i) above, in
the amount of such reduction or
cancellation or the difference
between the actual Unpaid Balance
and the amount reported in the
applicable Monthly Receivables
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.
(d) If a Non-Complying Receivables and Dilution
Adjustment is made pursuant to
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Section 3.1(b)(ii) hereof in connection with any rejected or returned
merchandise, then immediately upon the making of such Non-Complying Receivables
and Dilution Adjustment, such rejected or returned merchandise shall be deemed
to be sold by WPS ▇▇▇▇▇ back to Seller without further action.
3.2 The WPS ▇▇▇▇▇ Note.
(a) Concurrently herewith, WPS ▇▇▇▇▇ has delivered to
Seller an Amended and Restated Non-Negotiable Promissory Note, substantially in
the form of Exhibit 3.2 hereto, payable to the order of Seller, which note is
subordinated to the extent set forth therein to all payments arising under or in
connection with the Loan Agreement and the other Financing Agreements (such
promissory note, as the same may be further 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"). The WPS ▇▇▇▇▇ Note is payable
in full on the date that is eighteen (18) months after the Maturity Date. The
WPS ▇▇▇▇▇ Note bears 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 and so long as such prepayment is permitted under the Loan
Agreement. The WPS ▇▇▇▇▇ Note supersedes and replaces the Non-Negotiable
Promissory Note, dated October 31, 2001, by WPS ▇▇▇▇▇ payable to the order of
Seller (the "Existing Note"), but does not extinguish or constitute payment of,
the obligations, liabilities and indebtedness evidenced through or arising
thereunder or in respect thereof. WPS ▇▇▇▇▇ hereby acknowledges that it is
indebted to Seller for interest through the date hereof under the Existing Note
and for interest accruing thereunder from and after the date hereof. Neither the
amendment and restatement contained in the WPS ▇▇▇▇▇ Note nor WestPoint's
acceptance of the WPS ▇▇▇▇▇ Note or other actions contemplated by this Purchase
Agreement, the Loan Agreement or any of the other Financing Agreements shall, in
any manner, be construed to constitute payment of, or impair, limit or
extinguish the indebtedness arising under or evidenced by the Existing Note or
constitute a novation with respect thereto.
(b) 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. 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 Servicer to ▇▇▇▇
the WPS ▇▇▇▇▇ Note "CANCELED" and to return the WPS ▇▇▇▇▇ Note to WPS ▇▇▇▇▇ upon
the final payment thereof.
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, Servicer or Agent pursuant to the Loan Agreement or (b) during a
Cash Dominion Period, proceeds of Loans pursuant to the Loan Agreement, WPS
▇▇▇▇▇ shall apply such funds, to the extent otherwise permitted under the Loan
Agreement, as follows:
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(i) first, to pay its existing expenses and to
set aside funds for the payment of expenses that are then accrued;
(ii) second, to repay any then outstanding and
unpaid Servicer Advances made during the immediately preceding month;
(iii) third, to pay the Purchase Price pursuant to
Section 3.1 hereof 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;
(iv) fourth, to repay amounts owed by WPS ▇▇▇▇▇
to Seller under the WPS ▇▇▇▇▇ Note; and
(v) fifth, to declare and pay dividends to
Seller to the extent permitted by law.
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
hereof, Seller hereby acknowledges and agrees that WPS ▇▇▇▇▇ shall assign to
Agent (for the benefit of itself and Lenders) the rights and interests granted
by Seller to WPS ▇▇▇▇▇ hereunder and agrees to cooperate fully with Servicer and
Agent in the exercise of such rights. As more fully described in Section 7.4(b)
hereof and in the Loan Agreement, Agent 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 6.3 of the Loan Agreement or
upon the occurrence of a Default or an Event of Default and for so long as the
same is continuing.
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 U.S. Dollars in
immediately available funds to an account that WPS ▇▇▇▇▇ (or Agent as assignee
of 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 a rate of one (1%)
percent 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.
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ARTICLE IV
CONDITIONS TO PURCHASES
4.1 Conditions Precedent to Initial Purchase. The effectiveness of
this Purchase Agreement is subject to the conditions precedent that (i) each of
the conditions precedent to the execution, delivery and effectiveness of the
Loan Agreement and each other Transaction Document to be executed on the
Effective Date (other than a condition precedent in any such other Transaction
Document relating to the effectiveness of this Purchase Agreement) shall have
been fulfilled to the satisfaction of WPS ▇▇▇▇▇, 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) 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 ▇▇▇▇▇;
(b) Good Standing Certificate of Seller; Certificates as
to Foreign Qualification of Seller. A good standing certificate for Seller,
issued by the Secretary of State its State of incorporation, the States where
its principal place of business and chief executive offices are located, each
dated as of a recent date;
(c) Incumbency Certificate. A certificate of the
Secretary or Assistant Secretary of Seller certifying, as of the date of this
Purchase Agreement, the names and true signatures of the officers authorized on
Seller's behalf to sign this Purchase Agreement and the other Transaction
Documents to be delivered by Seller hereunder;
(d) Other Transaction Documents. Original copies,
executed by each of the parties thereto in such reasonable number as shall be
specified by WPS ▇▇▇▇▇, of each of the other Transaction Documents to be
executed and delivered in connection herewith; and
(e) Opinions of Counsel. The following opinions of
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special Georgia counsel to Seller, each in
form and substance satisfactory to WPS ▇▇▇▇▇ and Agent, as to (i) general
corporate matters, (ii) non-consolidation issues, and (iii) true sale issues.
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 hereof (excluding,
with respect to any day after the Effective Date, Section 5.1(i) hereof) are
true and correct on and as of such day, with the same effect as though made on
and as of such day.
4.3 Effect of Payment of Purchase Price. Upon the payment of the
Purchase Price
14
(whether in cash or by an increase in the WPS ▇▇▇▇▇ Note pursuant to Section 3.1
hereof) 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.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
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 hereof.
(a) Organization and Good Standing. Seller is a
corporation duly organized and validly existing in good standing under the laws
of the State of Delaware and has full power and authority to own its properties
and to conduct its business as such properties are presently owned and such
business is presently conducted. Seller had at all relevant times, and now has,
all necessary power, authority, and legal right to own and sell the Receivables
and the Related Assets.
(b) Due Qualification. Seller is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt from
such requirement), and has obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or the conduct of its
business requires such qualification, licenses or approvals and where the
failure so to qualify, to obtain such licenses and approvals or to preserve and
maintain such qualification, licenses or approvals could reasonably be expected
to have a Material Adverse Effect.
(c) Power and Authority; Due Authorization. Seller has
(i) all necessary corporate power and authority to (A) execute and deliver this
Purchase Agreement and the other Transaction Documents to which it is a party,
(B) perform its obligations under this Purchase Agreement and the other
Transaction Documents to which it is a party, and (C) sell and assign
Receivables and the Related Assets on the terms and subject to the conditions
herein and therein provided, (ii) duly authorized by all necessary corporate
action such sale and assignment and the execution, delivery, and performance of
this Purchase Agreement and the other Transaction Documents to which it is a
party and the consummation of the transactions provided for in this Purchase
Agreement and the other Transaction Documents to which it is a party and (iii)
duly executed and delivered this Purchase Agreement and each other Transaction
Document to which it is a party.
(d) Valid Sale; Binding Obligations. Each sale made by
Seller pursuant to this Purchase Agreement constitutes a valid sale, transfer,
and assignment of all of Seller's right, title and interest in, to and under the
Receivables and the Related Assets of Seller to WPS ▇▇▇▇▇ which is perfected and
of first priority under the UCC and otherwise, enforceable against
15
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 Agent on behalf of itself and Lenders under
the Loan 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 Authority
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) hereto, (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 Authority and (ii) Seller is not subject to any
order, judgment, decree, injunction, stipulation or consent order of or with any
court or other Governmental Authority, that, in the case of each of the
foregoing clauses (i) and (ii), (A) asserts the invalidity of, or otherwise
applies to, 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 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.
16
(h) Government Approvals. All authorizations, consents,
orders and approvals of, or other action by, any Governmental Authority that are
required to be obtained by Seller, and all notices to and filings with any
Governmental Authority that are required to be made by Seller, in the case of
each of the foregoing in connection with the conveyance of Receivables and
Related Assets or the due execution, delivery and performance by Seller of this
Purchase Agreement or any other Transaction Document to which it is a party, and
the consummation of the transactions contemplated by this Purchase Agreement,
have been obtained or made and are in full force and effect, except where the
failure to obtain or to make any such authorization, consent, order, approval,
notice or filing, individually or in the aggregate for all such failures, could
not reasonably be expected to have a Material Adverse Effect.
(i) Financial Condition. WestPoint hereby represents that
all financial statements relating to WestPoint and its Subsidiaries which have
been or may hereafter be delivered by WestPoint and its Subsidiaries to WPS
▇▇▇▇▇ or Agent have been prepared in accordance with GAAP (except as to any
interim financial statements, to the extent such statements are subject to
normal year-end adjustments and do not include any notes) and fairly present in
all material respects the financial condition and the results of operation of
WestPoint and its Subsidiaries as at the dates and for the periods set forth
therein. Except as disclosed in any interim financial statements furnished by
WestPoint and its Subsidiaries to WPS ▇▇▇▇▇ or Agent prior to the date of this
Purchase Agreement or as otherwise disclosed to WPS ▇▇▇▇▇ or Agent prior to the
date of this Purchase Agreement, there has been no material adverse change in
the assets, liabilities, properties and condition, financial or otherwise, of
Seller since the date of the most recent audited financial statements furnished
by or on behalf of Seller to WPS ▇▇▇▇▇ or Agent prior to the date of this
Purchase Agreement.
(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 Agent on behalf of itself and Lenders under the Loan
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 (other than any Adverse
17
Claim arising solely as the result of any action taken by WPS ▇▇▇▇▇ hereunder or
by Agent on behalf of itself and Lenders under the Loan 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 Agent for the benefit of itself and
Lenders, in accordance with the Loan 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 Accounts. On the date of each Receivables
Report which identifies a Receivable as an Eligible Account, such Receivable is
an Eligible Account.
(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 ▇▇▇▇▇, Servicer or 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.
(n) Offices; Jurisdiction of Organization. The principal
place of business and chief executive office of Seller is located at the address
set forth in Schedule 5.1(n) hereto, the offices where Seller keeps all Records
and all Contracts, purchase orders and agreements related to the Receivables and
the Related Assets (and all original documents relating thereto) are located at
the addresses specified in Schedule 5.1(n) hereto and the jurisdiction of
organization of Seller is the State of Delaware (or at such other locations or
jurisdictions, notified to Servicer and Agent in accordance with Section 6.1(f)
or 6.1(m) hereof, as applicable, in jurisdictions where all action required
pursuant to Section 7.3 hereof 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
18
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) hereof. Each lock-box identified on Schedule 5.1(o)
hereto is maintained in the name of WPS ▇▇▇▇▇ and is subject to a Deposit
Account Control Agreement that is in full force and effect and exclusive
dominion and control of each such lock-box has been transferred to WPS ▇▇▇▇▇
(subject to the rights of Agent with respect thereto) and WPS ▇▇▇▇▇ is the
customer of the Lock-Box Banks and the Concentration Bank in connection
therewith. Seller has instructed all Obligors to submit all payments on the
Receivables and Related Assets directly to one of the Lock-Box Accounts. Seller
has and maintains accounting, administrative and operating procedures that
permit identification of the Collections.
(p) Compliance with Applicable Laws. Seller is in
compliance in all respects with the requirements of all applicable laws, rules,
regulations, and orders of all Governmental Authorities (federal, state, local
or foreign, and including environmental laws), a violation of any of which,
individually or in the aggregate for all such violations, could reasonably be
expected to have a Material Adverse Effect.
(q) Legal Names. During the past five years (i) Seller
has not been known by or used any legal name other than its corporate name as of
the date hereof, and (ii) Seller has not been the subject of any merger or other
corporate reorganization that resulted in a change of name, identity or
corporate structure. Seller uses no trade names or assumed names other than its
actual corporate name and the trade names and assumed names set forth in
Schedule 5.1(q) hereto.
(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) Compliance with Credit and Collection Policy. With
respect to each Receivable, Seller has complied in all material respects with
the Credit and Collection Policy.
(u) 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.
(v) Ownership of WPS ▇▇▇▇▇. Seller owns, directly or
indirectly, one hundred (100%) percent of the issued and outstanding capital
stock of WPS ▇▇▇▇▇, free and clear of any
19
Adverse Claim (other than the liens created under (i) the Third Amended and
Restated Stock Pledge Agreement, dated as of March 26, 2001, as amended, by and
between Seller and Bank of America, N.A., as Trustee, and (ii) the Stock Pledge
Agreement, dated as of June 29, 2001, as amended, among Seller, certain
subsidiaries of Seller and Bankers Trust Company, as Administrative Agent). Such
capital stock is validly issued, fully paid and nonassessable, and there are no
options, warrants or other rights to acquire securities of WPS ▇▇▇▇▇.
(w) Material Agreements. The Agreements listed on
Schedule B to the opinion of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP of even date
herewith are all of the material agreements relating to the financing of Seller.
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
6.1 Affirmative Covenants. From the Effective Date until the later
of the Purchase Termination Date and the date on which all Seller Obligations
and WPS ▇▇▇▇▇ Obligations shall have been finally and fully paid and performed,
unless WPS ▇▇▇▇▇ and Agent shall otherwise give its prior written consent,
Seller hereby agrees that it will perform the covenants and agreements set forth
in this Section 6.1.
(a) Compliance with Laws, Etc. Seller will comply with
all applicable laws, rules, regulations, judgments, decrees and orders
(including those relating to the Receivables, the Related Assets, the related
Contracts and any other agreements related thereto), where the failure so to
comply, individually or in the aggregate for all such failures, could reasonably
be expected to have a Material Adverse Effect.
(b) Preservation of Corporate Existence. Seller will
preserve and maintain its corporate existence, rights, franchises and privileges
in the jurisdiction of its incorporation, and qualify and remain qualified in
good standing as a foreign corporation in each jurisdiction where the failure to
preserve and maintain such existence, rights, franchises, privileges and
qualifications could reasonably be expected to have a Material Adverse Effect.
(c) Receivables Reviews. From time to time as requested
by Agent or WPS ▇▇▇▇▇, Seller will, at its cost and expense, upon reasonable
prior notice from Agent or WPS ▇▇▇▇▇, or at any time and without notice if an
Event of Default exists or has occurred and is continuing, permit Agent or WPS
▇▇▇▇▇ or their respective designees to (i) have complete access to Seller's
20
premises during normal business hours for the purposes of inspecting, verifying
and auditing the Receivables and the Related Assets and all of Seller's books
and records, including the Records, and discussing matters relating to the
Receivables and the Related Assets or Seller's financial condition or
performance hereunder or under any other Transaction Document or performance
under any Contract, in each case, with any of the officers or employees of
Seller having knowledge of such matters, (ii) meet with the independent auditors
of Seller to review with such auditors the books and records of Seller with
respect to the Receivables and Related Assets (including the Records) and (iii)
without limiting the provisions of clauses (i) or (ii) above from time to time
at the expense of Seller, permit certified public accountants or other third
party auditors acceptable to Agent or WPS ▇▇▇▇▇ to conduct a review of Seller's
books and records with respect to the Receivables and Related Assets. Seller
shall promptly furnish to Agent and WPS ▇▇▇▇▇ such copies of such books and
records or extracts therefrom as Agent or WPS ▇▇▇▇▇ may in good faith request,
and Agent, WPS ▇▇▇▇▇ or their respective designees may use during normal
business hours Seller's personnel, equipment, supplies and premises as may be
reasonably necessary for any of the foregoing and if an Event of Default exists
or has occurred and is continuing for the collection of Receivables and
realization of Related Assets.
(d) Keeping of Records and Books of Account. Seller shall
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing its Receivables
and Related Assets in the event of the destruction of the originals thereof
pursuant to a system reasonably acceptable to WPS ▇▇▇▇▇ and Agent and that is
successfully tested periodically or otherwise at such time or times as WPS ▇▇▇▇▇
or Agent may reasonably request), and shall keep and maintain, all documents,
books, records and other information which, in the reasonable determination of
WPS ▇▇▇▇▇ and Agent, 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 (including, without limitation, records
adequate to permit the daily identification of outstanding unpaid amounts owing
by Obligor and related debit and credit details of the Receivables). Upon the
request of WPS ▇▇▇▇▇ or Agent 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 Agent. 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 its Records related to the
21
Receivables and the Related Assets (and all original documents relating thereto)
at the addresses set forth on Schedule 5.1(n) hereto or at such other locations
as Seller may establish after the date hereof within the continental United
States provided Seller gives WPS ▇▇▇▇▇ and Agent written notice of the opening
of any such new location on or about the date of its opening (but in any event
no later than five (5) Business Days' thereafter so long as no Default or Event
of Default exists or has occurred and is continuing and no later than on the
date of its opening if a Default or Event of Default exists or has occurred and
is continuing) and all action required by Section 7.3 hereof shall have been
taken and completed.
(g) Credit and Collection Policies. Seller will comply in
all material respects with its Credit and Collection Policy in regard to each
Receivable of Seller and the Related Assets and the Contracts related to each
such Receivable, where the failure so to comply, individually or in the
aggregate for all such failures, could reasonably be expected to have a Material
Adverse Effect.
(h) Separate Corporate Existence of WPS ▇▇▇▇▇. Seller
hereby acknowledges that Agent and Lenders are entering into the transactions
contemplated by the Loan 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 Seller Obligations and WPS ▇▇▇▇▇ Obligations shall have been
fully paid and performed, 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 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 maintained in the name of the WPS ▇▇▇▇▇ and
to be subject at all times to a Deposit Account Control Agreement that is in
full force and effect. Seller shall not grant any Person, other than WPS ▇▇▇▇▇
or Agent, 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. Seller
has not (i) granted any Person, other than Agent and 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 and (ii) entered into any currently existing agreement with any
person other than Agent authorizing the bank at which any Lock-Box Account or
the Concentration Account are maintained to comply with instructions from such
other person as to the disposition of funds in or from the Lock-Box Accounts or
the Concentration Account or with respect to any other dealings with any
Lock-Box Account or the Concentration Account and no other person is, or
22
may be deemed to be, the customer of the bank as to any Lock- Box Account or the
Concentration Account.
(j) Taxes. Seller will file all tax returns and reports
required by law to be filed by it, will accrue in accordance with GAAP for all
taxes payable by it and will pay all taxes and governmental charges shown on
such tax returns and reports to be owing by it, prior to the date on which
penalties attach thereto except any such taxes or charges which (i) are being
diligently contested in good faith by appropriate proceedings, (ii) for which
adequate reserves in accordance with GAAP have been set aside on their
respective books and (iii) with respect to which no lien has been imposed upon
any Receivables or Related Assets.
(k) Identification of Eligible Accounts. Seller will
establish and maintain such procedures as are necessary for determining whether
each Receivable qualifies as an Eligible Account 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 Accounts.
(l) Accuracy of Information. All written information
furnished on and after the Effective Date by Seller or any other WPS Person to
WPS ▇▇▇▇▇, Servicer or 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.
(m) 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).
6.2 Reporting Requirements. From the Effective Date until the
later of the Purchase Termination Date and the date on which all Seller
Obligations and WPS ▇▇▇▇▇ Obligations shall have been finally and fully paid and
performed, Seller agrees that it will, unless WPS ▇▇▇▇▇ and Agent, on behalf of
itself and Lenders, shall otherwise give prior written consent, furnish to WPS
▇▇▇▇▇ and Agent:
(a) Monthly Financial Statements. Within twenty (20) days
after the end of each fiscal month, other than a fiscal month that is also the
end of a fiscal quarter or the end of a fiscal year, and within thirty (30) days
after the end of each fiscal month that is also the end of a fiscal quarter,
other than a fiscal quarter that is also the end of a fiscal year, and within
forty-five (45) days after the end of each fiscal month that is also the end of
a fiscal year, as applicable, monthly unaudited consolidated financial
statements of Seller and its Subsidiaries (including balance
23
sheets, statements of income and loss and statements of cash flow, and on a
quarterly basis, statements of shareholders' equity), all in reasonable detail,
fairly presenting in all material respects the financial position and the
results of the operations of Seller and its Subsidiaries as of the end of and
through such fiscal month, certified to be correct by the chief financial
officer, treasurer or controller of Seller, subject to normal year-end
adjustments and no footnotes;
(b) Annual Financial Statements. Within ninety five (95)
days after the end of each fiscal year (or within one hundred twenty (120) days
after the end of each fiscal year in the event Seller receives an extension of
time from the Securities and Exchange Commission to file its annual report on
Form 10-K for such fiscal year), audited consolidated financial statements of
Seller and its Subsidiaries (including balance sheets, statements of income and
loss, statements of cash flow, and statements of shareholders' equity), and the
accompanying notes thereto, all in reasonable detail, fairly presenting in all
material respects the financial position and the results of the operations of
Seller and its Subsidiaries as of the end of and for such fiscal year, together
with the unqualified opinion of independent certified public accountants with
respect to the audited consolidated financial statements, which accountants
shall be an independent accounting firm selected by Seller and acceptable to WPS
▇▇▇▇▇ and Agent, that such audited consolidated financial statements have been
prepared in accordance with GAAP, and present fairly in all material respects
the results of operations and financial condition of Seller and its Subsidiaries
as of the end of and for the fiscal year then ended;
(c) Projections. At least twenty five (25) days after the
end of each fiscal year, projected consolidated financial statements of
WestPoint and its Subsidiaries (including in each case forecasted balance
sheets, statements of income and loss and statements of cash flow), all in
reasonable detail, for the then current fiscal year of WestPoint prepared on a
monthly basis, together with a statement of all assumptions related thereto
(which shall be fair and reasonable as of the date of preparation in view of
current and reasonably foreseeable business conditions) and monthly projections
of Senior Credit Facility Availability for the subsequent fiscal year, together
with a statement of all assumptions related thereto (which shall be fair and
reasonable as of the date of preparation in view of current and reasonably
foreseeable business conditions), which projected financial statements and
projections of availability shall be based on the reasonable, good faith opinion
of WestPoint for the periods set forth therein (it being understood that actual
results may differ from those set forth in such projections);
(d) Events of Default; Proceedings; Material Adverse
Effect; ERISA Events. Seller shall notify WPS ▇▇▇▇▇ and Agent immediately if at
any time the Senior Credit Facility Availability is less than $75,000,000 or if
there is any default or event of default under the Senior Credit Facility
Agreement or any related agreements, the Subordinated Credit Facility Agreement
or any related agreements or the Senior Notes or any related agreements (or any
agreements relating to Indebtedness refinancing or replacing the Senior Notes).
Seller shall promptly notify WPS ▇▇▇▇▇ and Agent in writing of the details of
(i) any loss, damage, investigation, action, suit, proceeding or claim that if
adversely determined could reasonably be expected to have a Material Adverse
Effect, (ii) any order, judgment or decree entered against Seller or any of its
properties or assets that could reasonably be expected to have a Material
Adverse Effect, (iii) any ERISA Event, and (iv) the occurrence of any Default or
Event of Default.
24
(e) Reports to Holders and Exchanges. In addition to the
reports required by subsections 6.2(a) and (b) above, Seller shall promptly
after the sending or filing thereof furnish or cause to be furnished to WPS
▇▇▇▇▇ and Agent copies of all reports which Seller sends to its stockholders
generally and copies of all reports and registration statements which Seller
files with the Securities and Exchange Commission, any national securities
exchange or the National Association of Securities Dealers, Inc.
(f) Review of Receivables. As soon as available, Seller
will furnish to WPS ▇▇▇▇▇ and Agent copies of all reports relating to audits or
reviews of the Receivables or the credit and collection policies or practices of
Seller, whether prepared by Seller, WPS ▇▇▇▇▇ or by an independent third party;
(g) Change in Business or Credit and Collection Policy.
At least ten (10) Business Days prior to its effective date, Seller will furnish
to WPS ▇▇▇▇▇ and Agent notice of (i) any material change in the character of
Seller's business, and (ii) any material change in the Credit and Collection
Policy;
(h) Ratings. Within one (1) Business Day of obtaining
knowledge thereof, Seller will furnish to WPS ▇▇▇▇▇ and Agent notice of any
downgrading or withdrawal of any rating of Seller's senior secured debt by any
rating agency; and
(i) 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
▇▇▇▇▇ or Agent may from time to time reasonably request in order to protect the
interests of WPS ▇▇▇▇▇, Agent and Lenders under or as contemplated by this
Purchase Agreement.
6.3 Negative Covenants. From the Effective Date until the later of
the Purchase Termination Date and the date on which all Seller Obligations and
WPS ▇▇▇▇▇ Obligations shall have been finally and fully paid and performed,
unless WPS ▇▇▇▇▇ and Agent 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 Loan 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 Loan
Agreement, and other Adverse Claims
25
permitted by any other Transaction Document), WPS ▇▇▇▇▇ may or Agent on behalf
of and for the account of 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 ▇▇▇▇▇ and Agent hall
be entitled to indemnification for any such expenditures pursuant to the
indemnification provisions of Article IX hereof. 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 collectability of any Receivable or WPS ▇▇▇▇▇'▇
or Agent's rights therein (except in its capacity as Servicer and then only to
the extent permitted under Section 6.4(c) of the Loan 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 collectability of
any significant portion of the Receivables or otherwise adversely affect the
interests or remedies of WPS ▇▇▇▇▇'▇ or Agent'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) hereto unless, prior to any such addition, termination or change
WPS ▇▇▇▇▇ and Agent shall have received not less than ten (10) Business Days'
prior written notice of such addition or termination and, not less than ten (10)
Business Days prior to the effective date of any such proposed addition, change
or termination, WPS ▇▇▇▇▇ and Agent shall have received (A) counterparts of the
applicable type of Deposit Account Control 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 Agent, or (ii) make any change in its instructions to Obligors,
given in accordance with Section 5.1(o) hereof, 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 Bank or Concentration Bank.
(d) Mergers, Consolidations, Sales, etc. Except for
mergers or consolidations permitted by the Loan Agreement, Seller will not be a
party to any merger or consolidation or, except as permitted by the Loan
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 not, directly or indirectly, transfer, assign, convey or
lease, whether in one transaction or in a series of transactions, all or
substantially all of its assets except as permitted by the Loan Agreement, or
sell or assign, with or without recourse, any Receivables or Related Assets, in
each case other than pursuant to this Purchase Agreement.
26
(e) Change in Name; Jurisdiction of Organization. Seller
will not, nor will it permit WPS ▇▇▇▇▇ to (i) change its corporate structure or
its corporate name unless each of the following conditions is satisfied: (A)
Agent shall have received not less than thirty (30) days prior written notice
from Seller of such proposed change in its corporate name or the corporate name
of WPS ▇▇▇▇▇, which notice shall accurately set forth the new name; and (B)
Agent shall have received a copy of the amendment to the Certificate of
Incorporation of Seller or WPS ▇▇▇▇▇ providing for the name change certified by
the Secretary of State of its jurisdiction of organization as soon as it is
available or (ii) change its jurisdiction of organization.
(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 Agent, 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 Agent 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.
(j) Deposits to Lock-Box Accounts and Concentration
Account. Seller shall not deposit or otherwise credit, or cause or permit to be
so deposited or credited, to any Lock-Box Account or Concentration Account, any
cash or cash proceeds other than Collections of Receivables. To the extent that
any such funds nevertheless are deposited into any of such Lock-box Accounts or
Concentration Account, Seller shall promptly identify any such funds, or shall
cause such funds to be so identified, to WPS ▇▇▇▇▇, Servicer and Agent
(following which notice, WPS ▇▇▇▇▇ shall cause Servicer to return all such funds
to Seller).
27
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT
OF THE TRANSFERRED ASSETS
7.1 Rights of WPS ▇▇▇▇▇.
(a) Subject to Section 7.4(b) hereof, Seller hereby
authorizes WPS ▇▇▇▇▇, Servicer and/or their respective designees to take any and
all steps in Seller's name and on behalf of Seller that WPS ▇▇▇▇▇, 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) hereof 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 Loan Agreement or otherwise.
(d) WPS ▇▇▇▇▇ shall have the sole right to retain any
gains or profits created by buying, selling or holding the Transferred Assets
and shall have the sole risk of and responsibility for losses or damages created
by such buying, selling or holding.
7.2 Responsibilities of Seller. Anything herein to the contrary
notwithstanding:
(a) Seller agrees to deliver directly to 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 ▇▇▇▇▇ (or Agent as
assignee of WPS ▇▇▇▇▇) and shall be maintained and segregated separate and apart
from all other funds and moneys of Seller until delivery of such Collections to
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
28
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 Agent with such licenses,
sublicenses and/or assignments of contracts as WPS ▇▇▇▇▇ or Agent 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.
7.3 Further Action Evidencing Purchases.
(a) 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
Document. Seller further agrees that from time to time, at its expense, it will
promptly, upon request, take all action that WPS ▇▇▇▇▇, Servicer or Agent 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
Agent, on behalf of itself and Lenders, 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 place on
its computer systems and electronic 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 SECOND AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT, DATED AS OF MARCH 28,
2003, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME, BETWEEN
WESTPOINT ▇▇▇▇▇▇▇ INC. AND WPS RECEIVABLES CORPORATION, AND A
SECURITY INTEREST IN THE RECEIVABLES DESCRIBED HEREIN AND IN
SUCH RECEIVABLES PURCHASE AGREEMENT HAS BEEN GRANTED AND
ASSIGNED TO CONGRESS FINANCIAL CORPORATION (SOUTHERN), AS
AGENT ON BEHALF OF ITSELF AND CERTAIN LENDERS PURSUANT TO THE
LOAN AND SECURITY AGREEMENT, DATED AS OF MARCH 28, 2003, AMONG
WPS RECEIVABLES CORPORATION, AS BORROWER, WESTPOINT ▇▇▇▇▇▇▇
INC., AS INITIAL SERVICER, CONGRESS FINANCIAL CORPORATION
(SOUTHERN), AS AGENT, AND THE PARTIES THERETO AS LENDERS, AS
AMENDED OR SUPPLEMENTED FROM TIME TO TIME."
In the event that any such records are printed and distributed or shown to any
person other than WPS ▇▇▇▇▇ or Agent, and other than customers in the ordinary
course of the business of Seller consistent with current practices as of the
date hereof, such legend shall be included with such printed records.
29
(b) Seller irrevocably and unconditionally authorizes
Agent (or its agent) to file at any time and from time to time such financing
statements with respect to the Transferred Assets naming Seller as
seller/debtor, WPS ▇▇▇▇▇ as buyer/secured party, and Agent as assignee of WPS
▇▇▇▇▇, as Agent may require, and including any other information with respect to
Seller or otherwise required by part 5 of Article 9 of the UCC of such
jurisdiction as Agent (as assignee of WPS ▇▇▇▇▇) may determine, together with
any amendment and continuations with respect thereto, which authorization shall
apply to all financing statements filed on, prior to or after the date hereof.
Seller hereby ratifies and approves all financing statements naming Seller as
seller/debtor, WPS ▇▇▇▇▇ as buyer/secured party, and Agent as assignee of WPS
▇▇▇▇▇, with respect to the Transferred Assets (and any amendments with respect
to such financing statements) filed by or on behalf of WPS ▇▇▇▇▇ or Agent prior
to the date hereof and ratifies and confirms the authorization of WPS ▇▇▇▇▇ or
Agent to file such financing statements (and amendments, if any). Seller hereby
authorizes Agent to adopt on behalf of Seller any symbol required for
authenticating any electronic filing. In the event that the description of the
collateral in any financing statement naming Seller as seller/debtor, WPS ▇▇▇▇▇
as buyer/secured party, and Agent as assignee of WPS ▇▇▇▇▇, includes assets and
properties of Seller that do not at any time constitute Transferred Assets, the
filing of such financing statement shall nonetheless be deemed authorized by
Seller to the extent of the Transferred Assets included in such description and
it shall not render the financing statement ineffective as to any of the
Transferred Assets or otherwise affect the financing statement as it applies to
any of the Transferred Assets. In no event shall Seller at any time file, or
permit or cause to be filed, any correction statement or termination statement
with respect to any financing statement (or amendment or continuation with
respect thereto) naming Seller as seller/debtor, WPS ▇▇▇▇▇ as buyer/ secured
party, and Agent as assignee of WPS ▇▇▇▇▇.
(c) 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, 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 hereof.
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
Agent (as assignee of WPS ▇▇▇▇▇) may reasonably request in order to effect or
complete such transfer.
(b) WPS ▇▇▇▇▇ (or Agent as assignee of 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 Agent or its designees.
Furthermore, Seller shall, at the request of WPS ▇▇▇▇▇ or Agent and at Seller's
expense, promptly give notice of Agent's interest in the Receivables of
30
such Obligor and the Related Assets to each such Obligor and direct that
payments be made directly to Agent or its designee, which notice shall be
acceptable in form and substance to WPS ▇▇▇▇▇. In addition, Seller hereby
authorizes WPS ▇▇▇▇▇ and Agent as assignee of 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 ▇▇▇▇▇ (or Agent as assignee 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. Agent, on Lenders 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 6.3 of the Loan Agreement or at any time an Event of Default shall exist
or have occurred and be continuing.
(c) At any time when (i) an Event of Default shall have
occurred and remain continuing or (ii) a Servicer other than WestPoint has been
designated pursuant to Section 6.3 of the Loan Agreement, Seller shall, at the
request of WPS ▇▇▇▇▇ (or Agent as assignee of WPS ▇▇▇▇▇), 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 Agent at a place selected by Agent or its designee.
ARTICLE VIII
TERMINATION
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 Agent not less than thirty (30) 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 so notify
Agent as promptly as is practicable. The sale of Receivables under this Purchase
Agreement will not cease until all Seller Obligations and WPS ▇▇▇▇▇ Obligations
shall have been finally and fully paid and performed.
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
9.1 Indemnities by Seller.
(a) 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,
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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"):
(i) 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 Receivables Report, any
Interim Receivables Report or any other information or report delivered by
Seller or Servicer (for so long as Servicer is a WPS Person) shall have been
false, incorrect or materially misleading when made or deemed made or omitted to
state material facts necessary to make the statements made not misleading;
(ii) 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;
(iii) 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 Agent on behalf of itself and Lenders pursuant to the Loan
Agreement), whether existing at the time of the sale of such Receivable or at
any time thereafter;
(iv) any failure of Seller to perform its duties
or obligations in accordance with the provisions of the Transaction Documents;
(v) 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;
(vi) 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;
(vii) any dispute, claim, offset or defense (other
than the discharge in bankruptcy) of an Obligor to the payment of any Receivable
or Related Asset, or Related Asset, including a defense based on such
Receivable's or the related Contract's not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its terms
or any other claim resulting from the sale of the merchandise or services
related to such Receivable or the furnishing or failure to furnish such
merchandise or services;
32
(viii) 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;
(ix) any transfer by Seller of any interest in
any Receivable other than the transfer of Receivables and related property by
Seller to WPS ▇▇▇▇▇ pursuant to this Purchase Agreement; and
(x) any claim of breach by any Seller of any
related Contract with respect to any Receivable.
(b) 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 Servicer (unless 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 Section 3.3 of
the Loan 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).
9.2 Contribution. If for any reason the indemnification provided
in Section 9.1 hereof is unavailable to a RPA Indemnified Party or is
insufficient to hold a RPA Indemnified Party harmless, then Seller shall
contribute to the maximum amount payable or paid to such RPA Indemnified Party
as a result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by such RPA
Indemnified Party on the one hand and Seller on the other hand, but also the
relative fault of such RPA Indemnified Party (if any) and Seller and any other
relevant equitable considerations.
ARTICLE X
MISCELLANEOUS
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
consented to by Agent in writing. Any amendment, waiver or consent effected
33
in accordance with the terms hereof shall be effective only in the specific
instance and for the specific purpose for which given.
(b) No failure or delay on the part of WPS ▇▇▇▇▇, any RPA
Indemnified Party, or Agent or any other third party beneficiary referred to in
Section 10.11(a) hereof 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 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.
10.2 Notices, Etc. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by express
mail or courier or by certified mail, postage prepaid, or by facsimile, to the
intended party at the address or facsimile number of such party set forth under
its name on the signature pages hereof or at such other address or facsimile
number as shall be designated by such party in a written notice to the other
parties hereto given in accordance with this Section 10.2 and to Agent at the
address or facsimile number set forth in the Loan Agreement or at such other
address or facsimile number as shall be designated by Agent 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 Agent at its address for notices set forth in the Loan 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.
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.
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 Agent (on behalf of itself and Lenders). 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 date on which all Seller Obligations and WPS ▇▇▇▇▇ Obligations
shall have been finally and fully paid and performed. The rights and remedies
with respect to any breach of any representation and warranty made by Seller
pursuant to Article V hereof and the indemnification and payment provisions of
Article IX hereof and Section 10.6 hereof shall be continuing and shall survive
any
34
termination of this Purchase Agreement and continue after the Purchase
Termination Date.
10.5 Governing Law. THIS PURCHASE AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE
LAWS OF A JURISDICTION OTHER THAN SUCH STATE, EXCEPT TO THE EXTENT THAT THE
PERFECTION OF THE INTERESTS OF WPS ▇▇▇▇▇ IN THE RECEIVABLES AND THE RELATED
ASSETS ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
GEORGIA.
10.6 Costs, Expenses and Taxes. In addition to the obligations of
Seller under Article IX hereof, 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 or the
other Transaction Documents incurred by Agent, 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.
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, OF 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
35
PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID TO EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, IT HEREBY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER OR IN CONNECTION WITH THIS PURCHASE AGREEMENT.
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.
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.
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.
10.11 Acknowledgment and Consent.
(a) Seller acknowledges that, contemporaneously herewith,
WPS ▇▇▇▇▇ is transferring, assigning, setting over and otherwise conveying to
Agent a security interest in and lien on the outstanding Receivables and Related
Assets sold by Seller to WPS ▇▇▇▇▇ from time to time pursuant to this Purchase
Agreement. Seller hereby consents to the transfer, assignment, set over and
conveyance to Agent by WPS ▇▇▇▇▇ 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, 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; provided, that, Agent shall have no obligation or liability
to Seller as a result of such transfer, assignment, set over and conveyance.
Each of the parties hereto acknowledges and agrees that Agent and Lenders are
third party
36
beneficiaries of the rights of WPS ▇▇▇▇▇ arising hereunder and under the other
Transaction Documents to which Seller is a party. Seller agrees not to assert
against Agent, as assignee, any claim or defense which Seller may at any time
have or claim to have against WPS ▇▇▇▇▇ and acknowledges that Agent has no
notice of any such claim or defense as of the date hereof. Seller acknowledges
that Agent and Lenders are relying upon the representations and agreements by
Seller contained herein in connection with the financing arrangements provided
by Agent and Lenders to WPS ▇▇▇▇▇. 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 Agent
reasonably determines is necessary or appropriate to evidence its consent
described in subsection (a) above. To the extent that WPS ▇▇▇▇▇, individually or
through Servicer, has granted or grants powers of attorney to Agent under the
Loan Agreement, Seller hereby grants a corresponding power of attorney on the
same terms to Agent.
(c) Seller hereby acknowledges and agrees that WPS ▇▇▇▇▇,
in all of its capacities, shall assign to Agent for the benefit of itself and
Lenders such powers of attorney and other rights and interests granted by Seller
to WPS ▇▇▇▇▇ hereunder and agrees to cooperate fully with Agent in the exercise
of such rights.
(d) Seller and WPS ▇▇▇▇▇ each hereby acknowledges that
if, notwithstanding the intention of the parties expressed in Section 1.6
hereof, the conveyance by Seller to WPS ▇▇▇▇▇ of Receivables hereunder shall be
characterized as a secured loan and not a sale and/or this Purchase Agreement
shall be characterized as a security agreement, and upon a default by Seller
hereunder, Agent (as assignee of WPS ▇▇▇▇▇) shall have, in addition to the
rights and remedies which it may have under this Purchase Agreement and the
other Transaction Documents, 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 and may be exercised alternatively, successively or
concurrently on any one or more occasions, and in the event of an Insolvency
Proceeding with respect to Seller, Agent is irrevocably authorized to: (i)
enforce and vote claims comprising any of the Seller Obligations either in its
own name or the name of WPS ▇▇▇▇▇, by proof of debt, proof of claim, suit or
otherwise; (ii) collect any assets of Seller distributed, divided or applied by
way of dividend or payment, or any securities issued, on account of any of the
Seller Obligations and apply the same, or the proceeds of any realization upon
the same, that Agent in its discretion elects to accept, to any WPS ▇▇▇▇▇
Obligations; (iii) vote claims comprising any of the Seller Obligations to
accept or reject any plan of partial or complete liquidation, reorganization,
arrangement, composition or extension; and/or (iv) take generally any action in
connection with any such Insolvency Proceeding which WPS ▇▇▇▇▇ might otherwise
take.
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.
10.13 No Proceedings. Seller hereby agrees that it will not
institute against WPS ▇▇▇▇▇
37
or Agent, or join any other Person in instituting against WPS ▇▇▇▇▇ or Agent,
any Insolvency Proceeding so long as any WPS ▇▇▇▇▇ Obligations shall be
outstanding or there shall not have elapsed one year plus one day since the last
day on which any such WPS ▇▇▇▇▇ Obligations 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 Agent by any Person other than Seller or any other WPS
Person.
10.14 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Purchase Agreement or any of
the other Transaction Documents shall for any reason whatsoever be held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Purchase
Agreement or such other Transaction Document (as applicable) and shall in no way
affect the validity or enforceability of the other provisions of this Purchase
Agreement or any of the other Transaction Documents.
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.
10.16 Confirmation and Ratification of Terms.
(a) Upon the effectiveness of this Purchase Agreement,
each reference to the Existing Purchase Agreement in any other Transaction
Document, and any document, instrument or agreement executed and/or delivered in
connection with the Existing Purchase Agreement and any Transaction Document,
shall mean and be a reference to this Purchase Agreement.
(b) The other Transaction Documents and all agreements,
instruments and documents executed or delivered in connection with the Existing
Purchase Agreement and any of the Transaction Documents shall each be deemed to
be amended to the extent necessary, if any, to give effect to the provisions of
this Purchase Agreement, as the same may be amended, modified, supplemented or
restated from time to time.
(c) The effect of this Purchase Agreement is to amend and
restate the Existing Purchase Agreement, and to the extent that any rights,
benefits or provisions in favor of any of the parties to the Existing Purchase
Agreement existed in the Existing Purchase Agreement and continue to exist in
this Purchase Agreement without any written waiver of any such rights, benefits
or provisions prior to the date hereof, then such rights, benefits or provisions
are acknowledged to be and to continue to be effective from and after the
Effective Date. This Purchase Agreement is not a novation.
(d) The parties hereto agree and acknowledge that any and
all rights, remedies and payment provisions under the Existing Purchase
Agreement, which are continuing and survive
38
any termination of the Existing Purchase Agreement including, without
limitation, any and all rights, remedies and payment provisions with respect to
(A) any representation and warranty made or deemed to be made pursuant to the
Existing Purchase Agreement, or (B) any indemnification provision, shall
continue and survive the execution and delivery of this Purchase Agreement.
(e) The parties hereto agree and acknowledge that any and
all amounts owing as or for fees, expenses or otherwise under or pursuant to the
Existing Purchase Agreement, immediately prior to the effectiveness of this
Purchase Agreement shall be owing as or for fees, expenses or otherwise,
respectively, under or pursuant to this Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
39
IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
WESTPOINT ▇▇▇▇▇▇▇ INC.
By: s/s ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Controller
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Post ▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WPS RECEIVABLES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Post ▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇