EXHIBIT 2.1(C)
FIRST AMENDMENT AND WAIVER TO SECURITIZATION AGREEMENTS
THIS FIRST AMENDMENT AND WAIVER TO SECURITIZATION AGREEMENTS (this
"AMENDMENT"), made and entered into as of November 16, 1999 (the "EFFECTIVE
DATE"), by and between CONE RECEIVABLES II LLC, a North Carolina limited
liability company ("CRLLC"), CONE XXXXX CORPORATION, a North Carolina
corporation ("CONE XXXXX"; each of CRLLC and Cone Xxxxx a "Company" and,
collectively, the "COMPANIES"), REDWOOD RECEIVABLES CORPORATION, a Delaware
corporation ("REDWOOD"), and GENERAL ELECTRIC CAPITAL CORPORATION, a New York
corporation ("GECC"), in its capacities as Operating Agent and Collateral Agent.
W I T N E S E T H:
WHEREAS, Cone Xxxxx, any other Originators that are or may hereafter become a
party thereto and CRLLC are parties to a certain Receivables Transfer Agreement,
dated as of September 1, 1999 (as amended to the date hereof, the "TRANSFER
AGREEMENT"; capitalized terms used herein and not otherwise defined herein shall
have the meanings given such terms in Annex X to the Transfer Agreement as
amended by this Amendment), whereby Cone Xxxxx has agreed (and each Subsidiary
of Cone Xxxxx which thereafter becomes an Originator will agree) to sell,
contribute or otherwise transfer to CRLLC, and CRLLC has agreed to purchase or
otherwise acquire from such Originators, all of the right, title and interest of
such Originators in the Receivables; and
WHEREAS, CRLLC, as Seller, Redwood, as Purchaser, Cone Xxxxx, as Servicer, and
GECC, as Operating Agent and as Collateral Agent, are parties to a certain
Receivables Purchasing and Servicing Agreement, dated as of September 1, 1999
(as amended to the date hereof, the "PURCHASE AGREEMENT"; the Transfer Agreement
and the Purchase Agreement, collectively, the "SECURITIZATION AGREEMENTS"),
whereby Purchaser has agreed, among other things, to purchase from CRLLC from
time to time the Receivables sold or contributed to CRLLC pursuant to the
Transfer Agreement; and
WHEREAS, Cone Xxxxx has requested that the Securitization Agreements be
amended in certain respects and that certain waivers be granted with respect to
the Securitization Agreements as set forth in this Amendment, and Redwood and
GECC are willing to agree to such amendments and grant such waivers subject to
the terms and conditions of this Amendment.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. AMENDMENTS OF SECURITIZATION AGREEMENTS. Subject to the terms and
conditions of this Amendment, the Securitization Agreements shall be amended as
follows:
(A) The Transfer Agreement shall be amended by deleting Schedule
4.01(m) attached thereto and by substituting in lieu thereof the revised
Schedule 4.01(m) attached to this Amendment.
(B) The Transfer Agreement shall be further amended by deleting
Schedule 4.03(k) attached thereto and by substituting in lieu thereof the
revised
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Schedule 4.03(k) attached to this Amendment.
(C) Annex X to each Securitization Agreement is hereby further amended
by deleting the reference to the date "February 24, 1995" in the definition
therein of the term "INDENTURE" and by substituting a reference to the date
"February 14, 1995" in lieu thereof.
2. CERTAIN WAIVERS. Subject to the terms and conditions of this Amendment,
Redwood and GECC (in its capacities as Operating Agent and Collateral Agent)
each hereby waives any Termination Event or Incipient Termination Event under
Section 9.01(h) of the Purchase Agreement and any Event of Servicer Termination
or Incipient Servicer Termination Event under Section 9.02(b) of the Purchase
Agreement that may have occurred as a result of the following events:
(a) Cone Xxxxx' incurrence of Debt under the synthetic lease
transaction with SunTrust Banks, Inc. described on
Schedule 4.03(k) to the Transfer Agreement as amended by
this Amendment; and
(b) The occurrence of an event described in Section
4043(c)(3) of ERISA with respect to Cone Xxxxx' Title IV
Plans as a result of employee terminations occurring
since January 1, 1999.
3. NO OTHER AMENDMENTS OR WAIVERS. Except for the amendments and
waivers expressly set forth and referred to in Section 1 and Section 2 above,
the Securitization Agreements shall remain unchanged and in full force and
effect. The waivers set forth in Section 2 above relate solely to specific
events described in such section, and nothing in this Amendment is intended (or
shall be construed) as a waiver of any other Termination Events, Incipient
Termination Events, Events of Servicer Termination or Incipient Servicer
Termination Events.
4. REPRESENTATIONS AND WARRANTIES. Each Company hereby represents and
warrants to Redwood, the Operating Agent and the Collateral Agent that (a) this
Amendment has been duly authorized, executed and delivered by each Company, (b)
after giving effect to this Amendment, no Termination Event, Incipient
Termination Event, Event of Servicer Termination or Incipient Servicer
Termination Event has occurred and is continuing as of this date, and (c) after
giving effect to this Amendment, all of the representations and warranties made
by each Company in the Securitization Agreements are true and correct in all
material respects on and as of the date of this Amendment (except to the extent
that any such representations or warranties expressly referred to a specific
prior date). Any breach in any material respect by Company of any of its
representations and warranties contained in this Section 4 shall be a
Termination Event and an Event of Servicer Termination for all purposes of the
Securitization Agreements.
5. RATIFICATION. Each Company hereby ratifies and reaffirms each and
every term, covenant and condition set forth in the Securitization Agreements
and all other documents delivered by such Company in connection therewith
(including without limitation the other Related Documents to which each Company
is a party), effective as of the date hereof.
6. ESTOPPEL. To induce Redwood, the Collateral Agent and the Operating
Agent to enter into this Amendment, each Company hereby acknowledges and agrees
that, as of the date hereof, there exists no right of offset, defense or
counterclaim in favor of either Company as against either Redwood, the
Collateral Agent or the Operating Agent with respect to the obligations of each
Company to either Redwood, the Collateral
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Agent or the Operating Agent under the Securitization Agreements or the other
Related Documents, either with or without giving effect to this Amendment.
7. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective, upon
the Effective Date, subject to the receipt by the Operating Agent of this
Amendment, duly executed, completed and delivered by each of the Companies,
Redwood, the Collateral Agent and the Operating Agent.
8. REIMBURSEMENT OF EXPENSES. Each Company hereby agrees that it shall
reimburse Redwood, the Collateral Agent and the Operating Agent on demand for
all reasonable costs and expenses (including without limitation reasonable
attorney's fees) incurred by such parties in connection with the negotiation,
documentation and consummation of this Amendment and the other documents
executed in connection herewith and therewith and the transactions contemplated
hereby and thereby.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED
ENTIRELY WITHIN SAID STATE.
10. SEVERABILITY OF PROVISIONS. Any provision of this Amendment which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by Applicable Law, each Company hereby
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
11. COUNTERPARTS. This Amendment may be executed in any number of
several counterparts, all of which shall be deemed to constitute but one
original and shall be binding upon all parties, their successors and permitted
assigns.
12. ENTIRE AGREEMENT. The Securitization Agreements as amended by this
Amendment embody the entire agreement between the parties hereto relating to the
subject matter hereof and supersedes all prior agreements, representations and
under-standings, if any, relating to the subject matter hereof.
13. CONE XXXXX' AND GECC'S CAPACITIES. Cone Xxxxx is executing and
delivering this Amendment both in its capacity as an Originator under the
Transfer Agreement and as the Servicer under the Purchase Agreement and all
references herein to "Cone Xxxxx" shall be deemed to include it in both such
capacities unless otherwise expressly indicated. GECC is executing and
delivering this Amendment both in its capacity as the Operating Agent for
Redwood and as the Collateral Agent for Redwood and the Purchaser Secured
Parties, and all references herein to "GECC" shall be deemed to include it in
both such capacities unless otherwise expressly indicated.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CONE RECEIVABLES II LLC
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
c/o AMACAR Group, L.L.C.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
with a copy to: 0000 Xxxxx Xxx Xxxxxx,
Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Treasurer
Telecopy: (000) 000-0000
REDWOOD RECEIVABLES CORPORATION
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Redwood Administrator
Telecopy: (000) 000-0000
CONE XXXXX CORPORATION, AS AN
ORIGINATOR AND AS SERVICER
By /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
0000 Xxxxx Xxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Treasurer
Telecopy: (000) 000-0000
GENERAL ELECTRIC CAPITAL CORPORATION, AS
OPERATING AGENT AND AS COLLATERAL AGENT
By /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Duly Authorized Signatory
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President - Portfolio / Cone
Receivables II LLC
Telecopy: (000) 000-0000
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