EXHIBIT 10.48
EXECUTION VERSION
AMENDMENT NO. 4
DATED AS OF JANUARY 22, 2004
TO
RECEIVABLES PURCHASE AND SERVICING AGREEMENT
DATED AS OF AUGUST 30, 2002
THIS AMENDMENT NO. 4 (this "AMENDMENT") is entered into as of
January 22, 2004 by and among AVONDALE FUNDING, LLC ("FUNDING"), AVONDALE
XXXXX, INC. (the "SERVICER") and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation, in its separate capacities as a committed purchaser (the
"COMMITTED PURCHASER"), and as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") under the Receivables Purchase and Servicing Agreement
referred to below. Capitalized terms used in this Amendment which are not
otherwise defined herein shall have the meanings given such terms in Annex X to
the Receivables Purchase and Servicing Agreement, as amended hereby.
RECITALS:
WHEREAS, Funding, the Servicer, the Committed Purchaser and
the Administrative Agent are parties to a Receivables Purchase and Servicing
Agreement dated as of August 30, 2002 (as amended, restated, supplemented or
otherwise modified from time to time, the "RECEIVABLES PURCHASE AND SERVICING
AGREEMENT"); and
WHEREAS, Funding, the Servicer, the Committed Purchaser and
the Administrative Agent have agreed to amend the Receivables Purchase and
Servicing Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Funding, the Servicer, the Committed Purchaser and the Administrative Agent
hereby agree as follows.
1. AMENDMENT TO RECEIVABLES PURCHASE AND SERVICING
AGREEMENT. Effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 2 below, the definition of "Xxxx
and Hold Discount Rate Factor" set forth in Annex X to the Receivables Purchase
and Servicing Agreement is hereby amended to delete such definition in its
entirety and to replace such definition with the following definition:
"'Xxxx and Hold Discount Rate Factor' shall mean, (a) 20% if
an Activation Event has not occurred and is not continuing,
or (b) 35% if an Activation Event has occurred and is
continuing."
2. CONDITIONS OF EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall become effective as of the date hereof (the "EFFECTIVE DATE")
when, and only when, the Administrative Agent shall have received each of the
following:
(a) counterparts of this Amendment duly executed by each
of Funding, the Servicer, the Committed Purchaser and the
Administrative Agent;
(c) evidence that each of the conditions precedent to
the effectiveness of that certain Amendment No. 1 to Credit Agreement
among Avondale Xxxxx, Inc., Avondale Xxxxx Graniteville Fabrics, Inc.
and General Electric Capital Corporation in its respective capacities
as Lender and as Agent have been satisfied.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Upon the effectiveness of this Amendment, each of
Funding and the Servicer (a) hereby reaffirms all covenants, representations
and warranties made by it in the Receivables Purchase and Servicing Agreement
and each other Related Document to the extent the same are not amended hereby
and except to the extent the same expressly relates solely to an earlier date,
(b) agrees that all such covenants, representations and warranties shall be
deemed to have been re-made as of the Effective Date, (c) represents and
warrants that, as of the Effective Date and after giving effect hereto, no
Termination Event, Incipient Termination Event, Event of Servicer Termination
or Incipient Servicer Termination Event has occurred and is continuing and (d)
represents and warrants that no event or circumstance has occurred since the
Closing Date that has resulted, or could reasonably be expected to result in, a
Material Adverse Effect.
3.2 Each of Funding and the Servicer hereby represents
and warrants that this Amendment and each of the Receivables Purchase and
Servicing Agreement, as amended hereby, (i) are within the corporate or limited
liability company powers of such Person, (ii) have been duly authorized by all
necessary corporate or limited liability company action, (iii) have received
all necessary governmental approvals, (iv) do not and will not contravene or
conflict with any provision of law or the applicable charter, by-laws,
operating agreement or other organizational documents of such Person or any
such Person and (v) constitute legal, valid and binding obligations of such
Person and are enforceable against such Person in accordance with their
respective terms.
4. REFERENCE TO AND EFFECT ON RELATED DOCUMENTS.
4.1 Upon the effectiveness of this Amendment pursuant to
Section 2 hereof, on and after the Effective Date, each reference to Annex X
and the Receivables Purchase and Servicing Agreement in any of the Related
Documents shall mean and be a reference to Annex X or the Receivables Purchase
and Servicing Agreement, as the case may be, as amended hereby.
4.2 Except as specifically set forth above, Annex X and
the Receivables Purchase and Servicing Agreement, and all other documents,
instruments and agreements executed and/or delivered in connection therewith,
shall remain in full force and effect, and are hereby ratified and confirmed.
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4.3 The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of Funding, the Committed Purchaser, the
Administrative Agent or the Collateral Agent, nor constitute a waiver of any
provision of any of the Related Documents, or any other documents, instruments
and agreements executed and/or delivered in connection therewith.
4.4 Each party hereto agrees and acknowledges that this
Amendment constitutes a Related Document under and as defined in the
Receivables Purchase and Servicing Agreement.
5. HEADINGS. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
6. COUNTERPARTS. This Amendment may be executed by one
or more of the parties to this Amendment on any number of separate counterparts
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
7. ENTIRE AGREEMENT. This Amendment, taken together
with the Receivables Purchase and Servicing Agreement and all of the other
Related Documents, embodies the entire agreement and understanding of the
parties hereto and supersedes all prior agreements and understandings, written
and oral, relating to the subject matter hereof.
8. GOVERNING LAW. THIS AMENDMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401
AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK BUT
OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).
9. NO COURSE OF DEALING. The Committed Purchaser and
the Administrative Agent have entered into this Amendment on the express
understanding with Funding and the Servicer that in entering into this
Amendment the Committed Purchaser and the Administrative Agent are not
establishing any course of dealing with Funding or the Servicer. The rights of
the Committed Purchaser and the Administrative Agent to require strict
performance with all the terms and conditions of the Receivables Purchase and
Servicing Agreement as amended by this Amendment and the other Related
Documents shall not in any way be impaired by the execution of this Amendment.
Neither the Committed Purchaser nor the Administrative Agent shall be obligated
in any manner to execute any further amendments or waivers, and if such waivers
or amendments are requested in the future, assuming the terms and conditions
thereof are acceptable to them, the Committed Purchaser and the Administrative
Agent may require the payment of fees in connection therewith.
10. WAIVER OF CLAIMS. In consideration for the execution
by the Committed Purchaser and the Administrative Agent of this Amendment, each
of Funding and the Servicer hereby waives each and every claim, defense,
demand, action and suit of any kind or nature whatsoever against each of the
Committed Purchaser, the Administrative Agent, the Operating
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Agent, the Collateral Agent and each other Affected Party arising on or prior
to the date hereof in connection with the Purchase Agreement, any of the
Related Documents and the transactions contemplated thereby.
11. EXPENSES. In consideration for the execution by the
Committed Purchaser, the Administrative Agent and the Collateral Agent of this
Amendment, each of Funding and the Servicer severally agrees to promptly
reimburse each of the Committed Purchaser, the Administrative Agent and the
Collateral Agent for all of the reasonable out-of-pocket expenses, including,
without limitation, attorneys' and paralegals' fees and expenses, it has
heretofore or hereafter incurred or incurs in connection with the preparation,
negotiation and execution of this Amendment.
12. SUCCESSORS AND ASSIGNS. This Amendment shall be
binding upon each of Funding and the Servicer, the Committed Purchaser, the
Administrative Agent and the Collateral Agent and their respective successors
and assigns and shall inure to the benefit of each such Person.
13. INTEGRATION. This Amendment contains the entire
understanding of the parties hereto with regard to the subject matter contained
herein. This Amendment supercedes all prior or contemporaneous negotiations,
promises, covenants, agreements and representations of every nature whatsoever
with respect to the matters contained in this Amendment, all of which have
become merged and finally integrated into this Amendment. Each of the parties
hereto understands that in the event of any subsequent litigation, controversy
or dispute concerning any of the terms, conditions or provisions of this
Amendment, no party shall be entitled to offer or introduce into evidence any
oral promises or oral agreements among the parties relating to the subject
matter of this Amendment not included or referred to herein and not reflected
by a writing included or referred to herein.
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IN WITNESS WHEREOF, this Amendment No. 4 has been duly
executed as of the day and year first above written.
AVONDALE FUNDING, LLC
By:
------------------------------------
Name:
Title:
AVONDALE XXXXX, INC., as the Servicer
By:
------------------------------------
Name:
Title:
Amendment Xx. 0
Xxxxxxxxxxx Xxxxxxxx and Servicing Agreement
GENERAL ELECTRIC CAPITAL CORPORATION,
as Committed Purchaser
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
Acknowledged and Agreed to as
of the date first written above:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Collateral Agent
By:
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
Amendment Xx. 0
Xxxxxxxxxxx Xxxxxxxx and Servicing Agreement
