Exhibit 2.1(f)
FOURTH AMENDMENT TO SECURITIZATION AGREEMENTS
AND ADDITIONAL ORIGINATOR JOINDER AGREEMENT
THIS FOURTH AMENDMENT TO SECURITIZATION AGREEMENTS AND ADDITIONAL
ORIGINATOR JOINDER AGREEMENT (this "Amendment"), made and entered into as of
April 24, 2000, by and between CONE RECEIVABLES II LLC, a North Carolina limited
liability company ("CRLLC"), CONE XXXXX CORPORATION, a North Carolina
corporation ("Cone Xxxxx"), CONE FOREIGN TRADING LLC, a North Carolina limited
liability company ("CFT"; each of CRLLC, Cone Xxxxx and CFT 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, Collateral Agent,
Letter of Credit Provider and Letter of Credit Agent.
W I T N E S E T H:
WHEREAS, Cone Xxxxx 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 through 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"), 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, Redwood and GECC, as Liquidity Agent and the sole Liquidity
Lender, are parties to that certain Liquidity Loan Agreement, dated as of
September 1, 1999 (the "Liquidity Loan Agreement"); and
WHEREAS, Redwood and GECC, as Letter of Credit Provider and Letter of
Credit Agent, are parties to that certain Reimbursement Agreement Supplement,
dated as of September 1, 1999 (the "RFC Supplement"; the Transfer Agreements,
the Liquidity Loan Agreement and the RFC Supplement, collectively, the
"Securitization Agreements"); and
WHEREAS, the Transfer Agreement and the Purchase Agreement were amended
pursuant to that certain First Amendment and Waiver to Securitization
Agreements, dated as of November 16, 1999, among the parties hereto, that
certain Second Amendment to Securitization Agreements, dated as of January 28,
2000, among the parties thereto, and that certain Third Amendment to
Securitization Agreements, dated as of March 31, 2000, among the parties
thereto; and
35
WHEREAS, Cone Xxxxx has requested that CFT, a Subsidiary of Cone Xxxxx,
become an Originator under the Transfer Agreement, and the parties are willing
to allow CFT to become an Originator subject to the terms and conditions of this
Amendment; and
WHEREAS, Cone Xxxxx has also requested that the Securitization Agreements
be further amended in certain respects as set forth in this Amendment, and the
parties hereto are willing to agree to such amendments 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. Joinder of CFT as an Additional Originator. Subject to the terms and
conditions of this Amendment, including without limitation the fulfillment of
the conditions precedent specified in Section 7 below, CFT is hereby made an
Originator under the Transfer Agreement with the same force and effect as if CFT
were originally named therein as an Originator. CRLLC and the Operating Agent
hereby waive the requirement in Section 2.03 of the Transfer Agreement that Cone
Xxxxx give CRLLC and the Operating Agent prior written notice of the addition of
CFT as an Originator. Subject to the terms and conditions of this Amendment
(including without limitation the fulfillment of the conditions precedent
specified in Section 7 below), CRLLC and the Operating Agent hereby consent to
such addition. From and after the Fourth Amendment Effective Date, any reference
to an "Originator" in the Transfer Agreement or any other Related Document shall
include CFT in such capacity. CFT hereby agrees to all of the terms and
conditions of the Transfer Agreement applicable to it as an Originator and
agrees to be bound thereby. CFT hereby represents and warrants that all
representations and warranties in the Transfer Agreement applicable to it as an
Originator are true and correct on and as of the Fourth Amendment Effective Date
and are hereby deemed made on and as of such date (except to the extent that any
such representation or warranty expressly referred to a specific prior date).
Without limiting the generality of the foregoing, CFT agrees to instruct all
existing and future Obligors on its Transferred Receivables to make payments
thereof only by wire transfer directly to one of the Lockbox Accounts or by way
of a check mailed to one of the Lockboxes. Within 60 days after the Fourth
Amendment Effective Date, CFT shall either (i) close any and all lockboxes and
lockbox deposit accounts used by CFT for the collection of its Receivables
(other than the Lockboxes and the Lockbox Accounts) or (ii) take such actions
and execute such documents as the Operating Agent may request to cause such
lockboxes and lockbox deposit accounts to be transferred to CRLLC and to become
Lockboxes and Lockbox Accounts, respectively.
2. Amendments of Securitization Agreements. Subject to the terms and
conditions of this Amendment, including without limitation the fulfillment of
the conditions precedent specified in Section 7 below, the Securitization
Agreements shall be amended as follows:
36
(A) Annex 1 to the Purchase Agreement shall be deleted in its entirety.
(B) Annex G to the Purchase Agreement shall be amended by deleting subpart
(iv) of part (c) thereof and by substituting the following new subpart (iv) in
lieu thereof:tituting the following new subpart (iv) in lieu thereof:
(iv) Receivables Collection Turnover shall be less than 65 days; and
(C) Annex G to the Purchase Agreement shall be further amended by deleting
therefrom the definition of the term "Interest Expense" and by substituting the
following new definition of such term in lieu thereof:
"Interest Expense" shall mean, with respect to any Person for any fiscal
period, interest expense (whether cash or non-cash) of such Person determined on
a consolidated basis in accordance with GAAP for the relevant period ended on
such date, including (a) amortization of original issue discount on any Debt and
of all fees payable in connection with the incurrence of such Debt (to the
extent included in interest expense), (b) the interest component of any Capital
Lease Obligation, (c) with respect to Cone Xxxxx and Seller only, Redwood Yield
and fees (other than servicing fees), (d) with respect to Cone Xxxxx only,
amounts paid or payable by Cone Xxxxx under the Xxxxxx Swap Agreement, and (e)
with respect to Cone Xxxxx only, net cash paid with respect to interest,
discount, yield, and fees owed by Cone Xxxxx or any of its Subsidiaries under
the Existing Receivables Purchase Facility.
(D) Annex X to the Transfer Agreement and the Purchase Agreement shall be
amended by deleting therefrom the definitions of the terms "Concentration
Discount Amount", "Defaulted Receivable" "Excluded Obligor", "Foreign Receivable
Election Date", "Maximum Purchase Limit", and "Non-Transferred Receivable" and
by substituting the following new respective definitions of such terms in lieu
thereof:
"Concentration Discount Amount" means, with respect to any Obligor and its
Affiliates and as of any date of determination thereof, the greater of (i) the
percentage of the aggregate Outstanding Balance at such time of all Eligible
Receivables set forth in the table below based upon the Senior Unsecured
Short-Term Debt Rating (or, in the absence of such rating, the equivalent Senior
Unsecured Long-Term Debt Rating) assigned to such Obligor at such time by S&P
and Xxxxx'x (and, if such Obligor is rated by both agencies and has a split
rating, the applicable rating will be the lower of the two) and (ii) the Special
Limit, if any, applicable to such Obligor:
37
---------------------------------- ------------------------------- ----------------------
MINIMUM S&P RATING MINIMUM XXXXX'X RATING APPLICABLE PERCENTAGE
---------------------------------- ------------------------------- ----------------------
---------------------------------- ------------------------------- ----------------------
A-1+ or AA- P-1 or Aa3 15.0%
---------------------------------- ------------------------------- ----------------------
---------------------------------- ------------------------------- ----------------------
A-1 or A+ P-1 or A1 15.0%
---------------------------------- ------------------------------- ----------------------
---------------------------------- ------------------------------- ----------------------
A-2 or BBB+ P-2 or Baa1 10.0%
---------------------------------- ------------------------------- ----------------------
---------------------------------- ------------------------------- ----------------------
A-3 or BBB- P-3 or Baa3 5.0%
---------------------------------- ------------------------------- ----------------------
---------------------------------- ------------------------------- ----------------------
Below A-3 or BBB- or not rated Below P-3 or Baa3 or not 3.0%
by either S&P or Xxxxx'x rated by either S&P or Xxxxx'x
---------------------------------- ------------------------------- ----------------------
If an Obligor has neither a Senior Unsecured Short-Term Debt Rating or a
Senior Unsecured Long-Term Debt Rating by either S&P or Xxxxx'x, then such
Obligor's Concentration Discount Amount will be 3% of the aggregate Outstanding
Balance at such time of all Eligible Receivables. The percentages referenced
above may be changed with respect to any or all Obligors at any time at the sole
discretion of the Operating Agent and, in the case of an increase only, upon
satisfaction of the Rating Agency Condition with respect thereto.
"Defaulted Receivable" shall mean any Receivable (a) with respect to which
any payment, or part thereof, remains unpaid for more than 90 days (or 30 days
in the case of any Receivable owed by Levi Xxxxxxx or any Affiliate thereof)
after its Maturity Date or 180 days (or 90 days in the case of any Receivable
owed by Levi Xxxxxxx or any Affiliate thereof) from its original invoice date,
(b) with respect to which the Obligor thereunder has taken any action, or
suffered any event to occur, of the type described in Sections 9.01(c) or
9.01(d) of the Purchase Agreement or (c) that otherwise is determined to be
uncollectible and is written off in accordance with the Credit and Collection
Policies.
"Excluded Obligor" shall mean any Obligor (a that is an Affiliate of any
Originator or the Seller, (b) that is a Governmental Authority, (c) with respect
to which 50% (or 25% in the case of Levi Xxxxxxx, XX Corporation or Springs
Industries) or more of the aggregate Outstanding Balance of all Receivables
owing by such Obligor and its Affiliates are Defaulted Receivables (but solely
for purposes of this definition a Receivable owed by Springs Industries or VF
Corporation or any Affiliate of Springs Industries or VF Corporation shall be
considered a Defaulted Receivable if such Receivable or any part thereof remains
unpaid for more than (i) 60 days after its Maturity Date in the case of Springs
Industries or VF Corporation or any Affiliate of Springs Industries or VF
Corporation, (ii) 90 days from its original invoice date in the case of Springs
Industries or any Affiliate thereof or (iii) 120 days after its original invoice
date in the case of VF Corporation or any Affiliate thereof), or (d) listed on
Annex 2 to the Purchase Agreement as revised from time to time pursuant to a
letter in the form of Exhibit A thereto.
"Foreign Receivable Election Date" shall mean the Fourth Amendment
Effective Date.
38
"Maximum Purchase Limit" shall mean $65,000,000, as such amount may be
reduced in accordance with Section 2.02(a) of the Purchase Agreement; provided
that for purposes of the Purchase Agreement and the other Related Documents, the
Maximum Purchase Limit shall be $60,000,000 unless and until it is increased to
$65,000,000 pursuant to Section 2.02(c).
"Non-Transferred Receivable" shall mean either (1) any Receivable on which
the Obligor is Xxxxxxxx Manufacturing Company LLC or (2) any Receivable which is
the liability of an Obligor (i) organized under the laws of any jurisdiction
outside of the United States of America or (ii) having its principal place of
business outside of the United States of America, except for (x) Levi Xxxxxxx
Canada (but only if and for so long as Levi Xxxxxxx Canada is organized under
the laws of a province of Canada other than Quebec and has its principal place
of business in a province of Canada other than Quebec) and (y) Levi Xxxxxxx
Europe (but only if and for so long as Levi Xxxxxxx Europe is organized under
the laws of Belgium and has its principal place of business in Belgium).
(E) Annex X to the Transfer Agreement and the Purchase Agreement shall be
further amended by adding the following new definitions thereto:
"Fourth Amendment Effective Date" shall mean April 24, 2000. "Levi Xxxxxxx
EBITDA" shall mean with respect to Levi Xxxxxxx and its Subsidiaries and for any
period, on a consolidated basis and in accordance with GAAP, the sum of (without
duplication) (a) net income plus (b) income tax expense or benefit plus (c)
interest expense plus (d) depreciation expense plus (e) amortization expense
plus (f) Levi Xxxxxxx Restructuring Charges, plus (g) any other non-cash
charges.
"Levi Xxxxxxx Fixed Charge Coverage Ratio" shall mean with respect to Levi
Xxxxxxx and its Subsidiaries and as of any date of determination thereof, on a
consolidated basis and in accordance with GAAP, for the most recent four full
fiscal quarters ending prior to such date, the ratio of (a) Levi Xxxxxxx EBITDA
minus the Capital Expenditures (as defined in Annex G) of Levi Xxxxxxx and its
Subsidiaries divided by (b) Levi Xxxxxxx Fixed Charges; provided that this
definition (and the definitions of the defined terms used in this definition)
may be changed in a manner which increases the Levi Xxxxxxx Fixed Charge
Coverage Ratio from time to time by the Operating Agent in its discretion by
written notice to the Seller and the Purchaser.
"Levi Xxxxxxx Fixed Charges" shall mean, with respect to Levi Xxxxxxx and
its Subsidiaries and for any period, on a consolidated basis and in accordance
with GAAP, the sum of (a) all interest expense paid or accrued during such
period, plus (b) all cash income taxes paid during such period, plus (c)
scheduled payments of principal with respect to Debt made during such period,
plus (d) cash dividends or other cash distributions on such Person's Stock
(common or preferred) made or paid during such period.
"Levi Xxxxxxx Restructuring Charges" shall mean, with respect to Levi
Xxxxxxx and its Subsidiaries on a consolidated basis and for each period of four
consecutive fiscal quarters shown below, the amount set forth below for such
period:
39
Fourth-Quarter Period Ending: Levi Xxxxxxx Restructuring Charge:
March 31, 2000 $720,700,000
June 30, 2000 $720,700,000
September 30, 2000 $740,400,000
December 31, 2000 $497,700,000
March 31, 2001 or thereafter -0-
"Xxxxxx Swap Agreement" shall mean the ISDA Master Agreement, dated as of
July 20, 1998, as supplemented pursuant to that certain letter agreement, dated
as of July 20, 1998, both between Cone Xxxxx and Xxxxxx Guaranty Trust Company
of New York, as amended, modified, supplemented, restated or replaced from time
to time.
"Special Limit" means collectively for Levi Xxxxxxx, Xxxx Xxxxxxx Canada,
and Levi Xxxxxxx Europe (collectively, the "Levi Xxxxxxx Obligors") and as of
any date of determination thereof, (i) 15% if the Levi Xxxxxxx Fixed Charge
Coverage Ratio at such time is greater than 1.75:1.00, (ii) 10% if the Levi
Xxxxxxx Fixed Charge Coverage Ratio at such time is greater than 1.25:1.00 but
less than or equal to 1.75:1.00, or (iii) 5% if the Levi Xxxxxxx Fixed Charge
Coverage Ratio at such time is less than or equal to 1.25:1.00. Notwithstanding
any of the foregoing, (i) if and for so long as more than 50% in aggregate
Outstanding Balance at any one time of the aggregate Receivables owed by the
Levi Xxxxxxx Obligors are greater than 60 days past their respective Maturity
Dates or 90 days past their respective original invoice dates, the Special Limit
shall not exceed 10%, (ii) the maximum Special Limit for the Levi Xxxxxxx
Obligors shall not exceed 10% until either (a) the Credit Facility as in effect
on the Fourth Amendment Effective Date has been extended for a period of not
less than 364 days or for a shorter period acceptable to Purchaser, the
Operating Agent and the Collateral Agent or refinanced on terms acceptable to
the Purchaser, the Operating Agent, and the Collateral Agent or (b) Cone Xxxxx
shall have obtained a legally binding written commitment for such refinancing or
extension on terms acceptable to the Purchaser, the Operating Agent, and the
Collateral Agent, and in either such case with the Credit Facility Lenders or
with another lender or lenders acceptable to the Purchaser, the Operating Agent
and the Collateral Agent, and (iii) assuming that the condition specified in
clause (ii) above is satisfied, the Special Limit for the Levi Xxxxxxx Obligors
thereafter shall not exceed 12.5% from and after the 90th day (and 10% from and
after the 60th day) prior to the expiration date of the Credit Facility as then
in effect unless and until (a) the Credit Facility as then in effect has been
extended for a period acceptable to the Purchaser, the Operating Agent and the
Collateral Agent or refinanced on terms acceptable to the Purchaser, the
Operating Agent and the Collateral Agent or (b) Cone Xxxxx shall have obtained a
legally binding written commitment for such refinancing or extension on terms
acceptable to the Purchaser, the Operating Agent and the Collateral Agent, and
in either such case with the Credit Facility Lenders or with another lender or
lenders acceptable to the Purchaser, the Operating Agent and the Collateral
Agent. The Special Limit may be changed at any time at the sole discretion of
the Operating Agent and, in the case of an increase only, upon satisfaction of
the Rating Agency Condition with respect thereto.
40
(F) Annex 5.02(a) to the Purchase Agreement shall be amended by deleting
the reference to "each fiscal quarter" which appears in the second line of
paragraph (c) of such annex and by substituting in lieu thereof a reference to
"each of the first three (3) fiscal quarters of each fiscal year."
(G) Annex 5.02(a) to the Purchase Agreement shall be further amended by
adding thereto the following new paragraphs (k) and (l):
(k) Annual Audited Levi Xxxxxxx Financials. As soon as available,and in
any event within 100 days after the end of each fiscal year, a copy of the
audited consolidated financial statements for such year for Levi Xxxxxxx and its
Subsidiaries, certified in each case by nationally recognized independent public
accountants, with such financial statements being prepared in accordance with
GAAP applied consistently throughout the period involved (except as approved by
such accountants and disclosed therein).
(l) Quarterly Unaudited Levi Xxxxxxx Financials. As soon as available, and
in any event within 50 days after the end of each of the first three (3) fiscal
quarters of each fiscal year, financial information regarding Levi Xxxxxxx and
its Subsidiaries, consisting of consolidated (i) unaudited balance sheets as of
the close of such fiscal year and the related statements of income and cash
flows for that portion of the fiscal year ending as of the close of such fiscal
quarter and (ii) unaudited statements of income and cash flows for such fiscal
quarter, setting forth in comparative form the figures for the corresponding
period in the prior year, all prepared in accordance with GAAP.
(H) Schedules 4.01(b) and 4.01(t) to the Transfer Agreement shall be
deleted in their entireties and the revised Schedules 4.01(b) and 4.01(t)
attached to this Amendment shall be substituted in lieu thereof, respectively.
(I) The RFC Supplement shall be amended by deleting the reference to "5.0%"
which appears in part (x)(a) of Annex 1 thereto and by substituting a reference
to "12.5%" in lieu thereof.
(J) The RFC Supplement shall be further amended by deleting the references
to "12.5%" which appear in part (x)(b)(ii) and part (y) of Annex 1 thereto and
by substituting references to "20.0%" in lieu thereof.
(K) The Liquidity Loan Agreement shall be amended by adding the following
proviso to the parenthetical clause which follows the words "Defaulted
Receivable" in clause (b)(ii) of the definition of the term "CRLLC Collateral
Base" in Section 1.01 of the Liquidity Loan Agreement:
; provided, however,that for purposes of this definition only, a Receivable
owed by Levi Xxxxxxx or any Affiliate thereof shall not be considered a
Defaulted Receivable under part (a) of the definition of such term in Annex
X to the Purchase Agreement unless such Receivable or any part thereof
remains unpaid for more than 90 days after its Maturity Date or 180 days
from its original invoice date
41
(L) The Liquidity Loan Agreement shall be further amended by adding the
following new definition to Section 1.01 thereof:
"Liquidity Transfer Date" means the date on which any of the events set
forth in Section 9.01 or Section 9.02 of the Purchase Agreement shall have
occurred.
(M) The Liquidity Loan Agreement shall be further amended by adding the
following new Section 2.05 thereto:
SECTION 2.05 Liquidity Transfer.
(a) On or after any Liquidity Transfer Date, if the Company ( or the
Operating Agent on its behalf) so elects, by notice to the Liquidity Agent, the
Collateral Agent and each of the Liquidity Lenders (the date of the receipt by
the Liquidity Agent of any such notice being the "Transfer Date", provided that
if such date is not a Business Day the Transfer Date shall be the Business Day
immediately following such date), the Company does hereby transfer and assign,
effective as of the Transfer Date, all of its interests in the Transferred
Receivables and the Company Collateral at such time (including the Company's
interests in the Purchase Agreement and the other Related Documents in
accordance with Section 14.02 of the Purchase Agreement) to the Liquidity
Lenders; provided however, that no such assignment shall take place pursuant to
this Section 2.05(a) at any time when any of the events set forth in Sections
7.01(h), 7.01(i) or 7.01(k) shall have occurred. Each Liquidity Lender hereby
agrees, unconditionally and irrevocably and under all circumstances, without
setoff, counterclaim or defense of any kind, to pay on such Transfer Date to the
Company in immediately available funds to an account designated by the Company
an amount (up to the unused amount of such Liquidity Lender's Percentage of the
Liquidity Commitment on the Transfer Date) equal to such Liquidity Lender's
Percentage of an amount (such amount being such Liquidity Lender's "Transfer
Price") equal to (A) on each Transfer Date on or after the Facility Termination
Date, the positive difference (if any) of (i) the Allocated CP Face Amount as of
the Transfer Date minus (ii) the aggregate amount, if any, applied or to be
applied on the Transfer Date from amounts transferred on that day from the
Collection Account to the Collateral Account, in accordance with Section 6.05 of
the Purchase Agreement to the Commercial Paper Account in accordance with
Section 6.02(i) of the Collateral Agent Agreement minus (iii) without
duplication of amounts specified in clause (ii) above, CRLLC LOC Draws
Outstanding plus (iv) Outstanding Liquidity Loans minus (v) CRLLC Liquidity
Deposits plus (vi) CRLLC LOC Deposits, or (B) on each Transfer Date before a
Facility Termination Date, the positive difference (if any) of (i) the Allocated
CP Face Amount as of the Transfer Date minus (ii) the aggregate amount, if any,
applied or to be applied on the Transfer Date from amounts transferred on that
day from the Collection Account in accordance with Section 6.03 of the Purchase
Agreement, to the Commercial Paper Account in accordance with Section 6.02(i) of
the Collateral Agent Agreement minus (iii) without duplication of amounts
specified in clause (ii) above, CRLLC LOC Draws Outstanding plus (iv)
Outstanding Liquidity Loans minus (v) CRLLC Liquidity Deposits plus (vi) CRLLC
LOC Deposits. Upon payment of the Transfer Price, each Liquidity Lender shall
acquire an interest in the Transferred Receivables and the Company Collateral
(including the Company's interests in the Purchase Agreement and other Related
Documents pursuant to Section 14.02 of the Purchase Agreement) equal to its
Percentage thereof. Upon any transfer as contemplated hereunder, the Company
shall cease to make any additional purchases under the Purchase Agreement.
42
(b) Upon request by the Company (or the Operating Agent on its behalf)
given upon or after any transfer described in Section 2.05(a), the Liquidity
Lenders shall, at their own expense, promptly execute and deliver such
instruments of transfer and other documents and take such other actions as may
be necessary to effect a transfer by the Company to, and acceptance and
assumption by, the Liquidity Lenders, ratably in accordance with their
respective Percentages, of all of the Company's rights, titles, interests and
obligations under the Purchase Agreement and the other Program Documents, so
that the Company shall no longer be a party to the Purchase Agreement and the
other Program Documents. Any such transfer shall be without representation,
warranty or recourse to the Company, except that the Company shall represent and
warrant to the Liquidity Lenders that the Company has not created any Liens on
the transferred interests other than as described in Section 8.03 of the
Purchase Agreement, which the Collateral Agent hereby releases upon such
transfer. Upon the request of the Liquidity Agent, the Collateral Agent shall
deliver all instruments and documents and take such other actions as may be
necessary to evidence the release of its security interest in accordance with
the preceding sentence. The Liquidity Commitment shall be terminated immediately
after giving effect to the transfer pursuant to Section 2.05(a).
(c) Notwithstanding any other provision herein or in any Program Document
to the contrary, immediately upon given effect to any transfer pursuant to
Section 2.05(a), each Liquidity Lender and the Liquidity Agent hereby expressly
waives, releases and relinquishes (i) any and all rights and benefits it may
have pursuant to the Collateral Agent Agreement, whether in respect of the
Seller Collateral provided thereunder or otherwise and (ii) any and all rights
it may have pursuant to the Collateral Agent Agreement or any other Program
Document with respect to the proceeds of any Letter of Credit and pursuant to
the Collateral Agent Agreement or any other Program Document, such Liquidity
Lender shall immediately return such proceeds to the Collateral Agent for
application to the Seller Secured Obligations.
(N) The first sentence of each of Sections 2.02(a), 2.02(b) and 2.02(c) of
the Liquidity Loan Agreement shall be amended to begin with the following
language: "So long as no notice has been given pursuant to Section 2.05,".
(O) The following subsection (c) shall be added at the end of Section 4.03
of the Liquidity Loan Agreement:
(c) Notwithstanding the provisions of clauses (a) or (b) above and to the
extent that the Company has available funds, (A) on each Transfer Date on or
after on the Facility Termination Date, the Company shall repay in full any
Outstanding Liquidity Loans and such repayment shall be applied in accordance
with Section 6.05 of the Purchase Agreement and (B) on each Transfer Date before
a Facility Termination Date, the Company shall repay in full any Outstanding
Liquidity Loans and such repayment shall be applied in accordance with Section
6.02 of the Collateral Agent Agreement.
3. No Other Amendments. Except for the addition of CFT as an Originator
pursuant to Section 1 above and the amendments of the Securitization Agreements
expressly set forth and referred to in Section 2 above, the Securitization
Agreements shall remain unchanged and in full force and effect.
43
4. Representations and Warranties. Each Company hereby represents and
warrants to Redwood, the Operating Agent and the Collateral Agent that (i) this
Amendment has been duly authorized, executed and delivered by each Company, (ii)
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 the Fourth Amendment
Effective Date, and (iii) 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 Fourth Amendment Effective Date (except to the extent
that any such representation or warranty expressly referred to a specific prior
date). Any breach in any material respect by any Company of any of its
representations and warranties contained in Section 1 above or 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 Fourth Amendment Effective Date hereof.
6. Waiver by the Companies. Each of the Companies hereby waives any claim,
defense, demand, action or suit of any kind or nature whatsoever against the
Purchaser, the Operating Agent or the Collateral Agent arising on or prior to
the Fourth Amendment Effective Date in connection with any of the Securitization
Agreements or the transactions contemplated thereunder.
7. Conditions Precedent to Effectiveness. This Amendment shall become
effective, upon the Fourth Amendment Effective Date, subject to the satisfaction
of the following conditions on or prior to such date:
(A) 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;
(B) the receipt by the Operating Agent of the other documents, instruments,
agreements, certificates, financing statements, and legal opinions listed
on Annex Y attached to this Amendment, each in form and substance
satisfactory to the Operating Agent and Redwood; and
(C) the receipt by the Operating Agent of all fees and expenses payable to
Redwood, the Collateral Agent or the Operating Agent, respectively, in
connection with this Amendment including without limitation the reasonable
legal fees and other reasonable out of pocket expenses of Redwood, the
Collateral Agent or the Operating Agent incurred in connection with this
Amendment.
44
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 AMENDMENT 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 and
supplemented by this Amendment embody the entire agreement between the parties
hereto relating to the subject matter hereof and supersede all prior agreements,
representations and understandings, 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.
45
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
REDWOOD RECEIVABLES CORPORATION
By /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Assistant Secretary
CONE XXXXX CORPORATION, as an
Originator and as Servicer
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Treasurer
CONE FOREIGN TRADING LLC
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Treasurer
GENERAL ELECTRIC CAPITAL CORPORATION,
as Operating Agent and as
Collateral Agent
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Duly Authorized Signatory
46
FOURTH AMENDMENT TO SECURITIZATION AGREEMENTS AND
ADDITIONAL ORIGINATOR JOINDER AGREEMENT
dated as of
April 24, 2000
Schedule of Documents
In addition to, and not in limitation of, the conditions specified in
Section 7 of the Amendment described below, the following documents must be
received by the Operating Agent in form and substance satisfactory to the
Purchaser and the Operating Agent on or prior to the Fourth Amendment Effective
Date:
A. Receivables Purchase and Transfer Documents
1. Fourth Amendment to Securitization Agreements and Additional Originator
Joinder Agreement, dated as of April 24, 2000 (the "Amendment"), among Cone
Xxxxx Corporation, a North Carolina corporation ("Cone Xxxxx"), as an originator
and servicer (the "Servicer"), Cone Foreign Trading LLC, a North Carolina
limited liability company ("CFT"), as additional originator (the "Additional
Originator"), Cone Receivables II LLC, a North Carolina limited liability
company ("CRLLC"), as seller (the "Seller"), Redwood Receivables Corporation
("Redwood"), as purchaser (the "Purchaser"), and General Electric Capital
Corporation ("GE Capital"), as operating agent (the "Operating Agent") and as
collateral agent (the "Collateral Agent").
2. Receivable Assignment, dated as of April 24, 2000 (the "Additional
Originator Assignment"), executed by the Additional Originator.
3. Consent to Appointment of Sub-Servicer of CFT Receivables, dated as of
April 24, 2000, from the Purchaser, the Operating Agent and the Collateral
Agent.
4. Sub-Servicing Agreement, dated as of April 24, 2000 (the "Sub-Servicing
Agreement"), between the Servicer and CFT as Sub-Servicer (the "Sub-Servicer").
5. Power of Attorney executed by the Additional Originator to GE Capital in
its capacity as Collateral Agent.
6. Bringdown Certificate, dated as of April 24, 2000, executed by an
authorized officer of the Seller.
7. Bringdown Certificate, dated as of April 24, 2000, executed by an
authorized officer of the Servicer.
8. Bringdown Certificate, dated as of April 24, 2000, executed by an
authorized officer of the Sub-Servicer.
9. Officer's Certificate as to Solvency, dated as of April 24, 2000,
executed by an authorized officer of the Additional Originator.
47
10. Additional Originator Acknowledgment, Consent and Agreement dated as of
April 24, 2000 (the "Intercreditor Agreement Supplement"), executed by the
Additional Originator and consented to by Cone Xxxxx, the Seller, the Purchaser,
the Operating Agent, the Collateral Agent and the Credit Facility Agents.
11. Parent Agreement, dated as of April 24, 2000, executed by an authorized
officer of Cone Xxxxx (the "Parent Agreement").
12. Notice of Transfer, dated as of April 24, 2000, from the Additional
Originator to Levi Xxxxxxx Europe.
B. Legal Opinions
13. Opinion of Schell, Bray, Xxxxxx, Xxxx & Xxxxxxxxxx, P.L.L.C., counsel
for Cone Xxxxx, the Additional Originator, the Servicer and the Seller,
regarding, among other things, enforceability and perfection of security
interests in respect of the Amendment and the transactions contemplated thereby.
14. Opinion of Schell, Bray, Xxxxxx, Xxxx & Xxxxxxxxxx, P.L.L.C., counsel
for Cone Xxxxx, the Additional Originator, the Servicer, and the Seller,
regarding true sale.
15. Opinion of Schell, Bray, Xxxxxx, Xxxx & Xxxxxxxxxx, P.L.L.C., counsel
for Cone Xxxxx, the Additional Originator, the Servicer and the Seller,
regarding substantive consolidation.
16. Opinion of Xxxxxxxxxx Xxxxxxxx, LLP, special counsel to the Purchaser
and the Operating Agent, regarding creation of security interests.
17. Opinion of Ashurst, Morris, Crisp, special counsel to the Purchaser and
the Operating Agent, regarding certain Belgian law matters.
C. Corporate Documents
Cone Xxxxx
18. Articles of Incorporation for Cone Xxxxx, certified by the Secretary of
State of North Carolina.
19. Good standing certificate for Cone Xxxxx issued by the Secretary of
State of North Carolina.
20. A certificate of the Secretary of Cone Xxxxx certifying copies of (a)
the articles of incorporation of Cone Xxxxx; (b) the by-laws of Cone Xxxxx; (c)
the resolutions of Cone Xxxxx'x Board of Directors approving the Amendment, the
Sub-Servicing Agreement, the Intercreditor Agreement Supplement, the Parent
Agreement, and the other instruments, documents and agreements to be executed
and/or delivered by it in connection therewith and the transactions contemplated
thereby; and (d) the names and true signatures of the incumbent officers of Cone
Xxxxx authorized to sign such documents; and certifying such other matters as
may be requested by the Purchaser or the Operating Agent.
48
CRLLC
21. Articles of Organization for CRLLC certified by the Secretary of State
of North Carolina.
22. Good standing certificate for CRLLC issued by the Secretary of State of
North Carolina.
23. A certificate of the Secretary of CRLLC, certifying copies of (a) the
articles of organization of CRLLC; (b) the operating agreement of CRLLC; (c) the
resolutions of CRLLC's managers approving the Amendment, the Intercreditor
Agreement Supplement and the other instruments, documents and agreements to be
executed and/or delivered by it in connection therewith and the transactions
contemplated thereby; and (d) the names and true signatures of the incumbent
officers of CRLLC authorized to sign the transaction documents; and certifying
such other matters as may be requested by the Purchaser or the Operating Agent.
CFT
24. Articles of Origination for CFT, certified by the Secretary of State of
North Carolina.
25. Good standing certificate for CFT issued by the Secretary of State of
North Carolina.
26. A certificate of the Secretary of CFT, certifying copies of (a) the
articles of organization of CFT; (b) the operating agreement of CFT; (c) the
resolutions of CFT's sole member approving the Amendment, the Sub-Servicing
Agreement, the Additional Originator Assignment, the Intercreditor Agreement
Supplement and the other instruments, documents and agreements to be executed
and/or delivered by it in connection therewith and the transactions contemplated
thereby; and (d) the names and true signatures of the incumbent officers of CFT
authorized to sign such documents; and certifying such other matters as may be
requested by the Purchaser or the Operating Agent.
X. Xxxx Searches and Filings
Pre-Closing Searches
27. Pre-Closing UCC Lien Search Reports under the Additional Originator's
corporate and trade names listed on Annex I attached hereto in each of the
offices of the Secretary of State of North Carolina and the Register of Deeds of
Guilford County, North Carolina.
28. Pre-Closing Tax Lien, Pending Suit and Judgment Searches under the
Additional Originator's corporate and trade names listed on Annex II attached
hereto in each of the offices of the Secretary of State of North Carolina and
the Register of Deeds of Guilford County, North Carolina.
49
CFT
29. Copies of UCC-1 Financing Statements in respect of the Transferred
Receivables naming CFT as debtor/seller and the Seller as secured
party/purchaser and the Collateral Agent as assignee as filed with the Secretary
of State of North Carolina and the Register of Deeds of Guilford County, North
Carolina.
30. Post-Filing UCC Lien Search Reports against Cone Xxxxx confirming that
each of the UCC-1 Financing Statements described in the preceding item has been
filed and is of record in the jurisdiction in which it was filed.
E. Rating Confirmation
31. Confirmation that the Rating Agency Condition will be satisfied after
giving effect to the execution, delivery and consummation of the Amendment by
Redwood.
F. Other Documents
32. Such other consents, opinions, documents or instruments as the
Purchaser or the Operating Agent may request.
50
