FORM 10-Q
Exhibit 2.1(j)
AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
AMENDMENT dated as of September 29, 1996 (this
"Amendment") of a Receivables Purchase Agreement dated as of
August 11, 1992, as amended from time to time (the
"Receivables Purchase Agreement"), between CONE XXXXX
CORPORATION (the "Seller") and DELAWARE FUNDING CORPORATION
(the "Buyer"). Terms defined in the Receivables Purchase
Agreement and not otherwise defined herein have the same
meaning when used herein.
WITNESSETH:
WHEREAS, the Seller and the Buyer are parties to the
Receivables Purchase Agreement; and
WHEREAS, the Seller and the Buyer desire to amend
certain provisions of the Receivables Purchase Agreement;
NOW, THEREFORE, the parties hereto, in consideration
of their mutual covenants hereinafter set forth and intending
to be legally bound hereby, agree as follows:
ARTICLE I. Amendment to the Receivables
Purchase Agreement.
Subject to the satisfaction of the conditions
precedent specified in Article IV hereof, the Receivables
Purchase Agreement shall be amended as follows:
The definition of "Consolidated Net Income" in
Section 1.01 of the Receivables Purchase Agreement is hereby
amended in its entirety to read as follows:
"Consolidated Net Income" means, for any period, the
net income of the Seller and its Consolidated
Subsidiaries for such period, excluding non-cash equity
earnings or losses from unconsolidated foreign affiliates
and all other non-recurring items related to reserves or
losses for write-downs of inventory, accounts receivable,
fixed assets, and investment of assets outside of the
normal course of business.
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FORM 10-Q
Exhibit 2.1(j) (continued)
The Interest Coverage Ratio negative covenant
(but not the definitions of "EBIT" or "Consolidated Interest
Expense") set forth in section 6.02(j)(i) of the Receivables
Purchase Agreement is hereby amended in its entirety to read
as follows:
(j)(i) Interest Coverage Ratio. As of the last day
of (i) the respective fiscal quarters ended on June 30, 1996,
September 29, 1996 and December 29, 1996 the ratio of EBIT to
Consolidated Interest Expense for the period of four
consecutive fiscal quarters then ended will not be less than
1.8:1, 1.4:1 and 1.0:1, respectively, and (ii) each fiscal
quarter ended either prior to June 30, 1996 or after December
29, 1996, the ratio of EBIT to Consolidated Interest Expense
for the period of four consecutive fiscal quarters then ended
will not be less than 2.3:1.
ARTICLE II. Representations.
The Seller hereby represents and warrants that,
after giving effect to this Amendment:
the representations and warranties set forth in
Section 5.01 of the Receivables Purchase Agreement are true on
the date hereof as if made on and as of the date hereof except
as such representations and warranties specifically relate to
an earlier date and as if each reference to the "Receivables
Purchase Agreement" in said Section 5.01 was deemed to be a
reference to the Receivables Purchase Agreement as amended by
this Amendment; and
there shall exist no Termination Event or Potential
Termination Event under the Receivables Purchase Agreement.
ARTICLE III. Status of the Receivables Purchase
Agreement.
Except as otherwise expressly provided herein, all
terms and conditions of the Receivables Purchase Agreement are
ratified and shall remain unchanged and continue in full force
and effect. Each reference in the Receivables Purchase
Agreement to such Agreement or any exhibit thereto shall mean
and be a reference to the Receivables Purchase Agreement and
the exhibits thereto as amended hereby.
Page 44
FORM 10-Q
Exhibit 2.1(j) (continued)
ARTICLE IV. Condition Precedent.
The amendment to the Receivables Purchase Agreement
set forth in Article I hereof shall become effective on
September 30, 1996 upon the execution and delivery of this
Amendment by each of the parties hereto.
ARTICLE V. Governing Law.
This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE VI. Counterparts.
This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this
Amendment by signing such counterpart.
IN WITNESS WHEREOF, each of the parties hereto have
caused a counterpart of this Amendment to be duly executed as
of the date first above written.
DELAWARE FUNDING CORPORATION
by: Xxxxxx Guaranty Trust Company
of New York (as successor to
X.X. Xxxxxx Delaware),
as attorney-in-fact
for Delaware Funding
Corporation
by: /s/ Xxxxxxx X. Xxxxx
Authorized Signatory
Associate
Title
CONE XXXXX CORPORATION
by: /s/ Xxxxx X. Xxxx
Authorized Signatory
Treasurer
Title
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