EXHIBIT 2.1(D)
SECOND AMENDMENT TO SECURITIZATION AGREEMENTS
THIS SECOND AMENDMENT TO SECURITIZATION AGREEMENTS (this "AMENDMENT"),
made and entered into as of January 28, 2000 (the "EFFECTIVE DATE"), by and
between CONE RECEIVABLES II LLC, a North Carolina limited liability company
("CRLLC"), CONE ▇▇▇▇▇ CORPORATION, a North Carolina corporation ("CONE ▇▇▇▇▇";
each of CRLLC and Cone ▇▇▇▇▇ 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 ▇▇▇▇▇, 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 ▇▇▇▇▇ has agreed (and each Subsidiary
of Cone ▇▇▇▇▇ 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 ▇▇▇▇▇, 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, the Securitization Agreements were amended pursuant to that certain
First Amendment and Waiver to Securitization Agreements, dated as of November
16, 1999, among the parties hereto; and
WHEREAS, Cone ▇▇▇▇▇ has 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. AMENDMENTS OF SECURITIZATION AGREEMENTS. Subject to the terms and
conditions of this Amendment, the Securitization Agreements shall be amended as
follows:
(A) Section 4.03(k) of the Transfer Agreement is hereby amended by
deleting clause (v) thereof in its entirety and by substituting the following
replacement clause (v) in lieu thereof:
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(v) Debt arising under the Credit Facility,
(B) Section 9.01(y) of the Purchase Agreement is hereby deleted in its
entirety and the following new Section 9.01(y) is hereby substituted in lieu
thereof:
(y) (i) the Credit Facility shall be terminated, (ii)
an event of default shall have occurred under the
Credit Facility, or (iii) by July 3, 2000, Cone ▇▇▇▇▇
shall not have obtained either (a) a refinancing or
an extension of the Credit Facility (as in effect
immediately after giving effect to the Second
Amendment) on terms acceptable to the Purchaser, the
Operating Agent and the Collateral Agent or (b) a
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.
(C) Annex X to each Securitization Agreement is hereby amended by
deleting therefrom in their entirety the definitions of the terms "CREDIT
FACILITY" and "CREDIT FACILITY AGENT" and by substituting the following new
respective definitions of such terms in lieu thereof:
"CREDIT FACILITY" shall mean that certain Credit Agreement dated as of
January 28, 2000, among Cone ▇▇▇▇▇, as borrower, the Credit Facility Lenders and
the Credit Facility Lender Agent, and the other loan documents executed in
connection therewith, together with any amendments, restatements, supplements or
modifications thereto or any refinancings, replacements or refundings thereof.
"CREDIT FACILITY LENDER AGENT" shall mean Bank of America, N.A., as
Agent for the Credit Facility Lenders, and its successors and assigns, as well
as the agent for the lenders under any credit facility that refinances or
replaces the Credit Facility.
(D) Annex X to each Securitization Agreement is hereby further amended
by deleting clause (j) of the definition of the term "PERMITTED
ENCUMBRANCES" as set forth therein and by substituting the following
replacement clause (j) in lieu thereof:
(j) Liens created in favor of either or both of the
(other than the Transferred Receivables) to secure
indebtedness arising under the Credit Facility, any interest
rate protection agreement between Cone ▇▇▇▇▇ and any Credit
Facility Lender or any Affiliate thereof, the Prudential Note
Documents, the ▇▇▇▇▇▇ Swap Agreement, the Senior Lease
Documents, and/or the Debenture Documents, provided that
concurrently with or prior to the grant of any such Lien to
any Creditor Collateral Agent such Creditor Collateral Agent,
the Seller and the Originators shall have entered into an
Intercreditor Agreement with the Purchaser, the Operating
Agent and the Collateral Agent in substantially the form of
Exhibit 5.03(b) to the Purchase Agreement or in such other
form as may be satisfactory in all respects to the Purchaser,
the Operating Agent and the Collateral Agent in their
discretion and
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the Rating Agency Condition has been satisfied with respect to
such intercreditor agreement;
(E) Annex X to each Securitization Agreement is hereby further
amended by adding thereto the following new definitions:
"CREDITOR COLLATERAL AGENTS" shall mean (i) Bank of America, N.A., as
agent for the Credit Facility Lender Agent, the Credit Facility Lenders,
Prudential, ▇▇▇▇▇▇ and the Senior Lease Creditor pursuant to the Collateral
Agency Agreement (Priority), dated as of January 28, 2000, among such parties
and (ii) Wilmington Trust Company, as agent for the Credit Facility Lender
Agent, the Credit Facility Lenders, Prudential, ▇▇▇▇▇▇, the Senior Lease
Creditor, the Debenture Holders and the Debenture Trustee pursuant to the
Collateral Agency Agreement (General), dated as of January 28, 2000, among such
parties.
"DEBENTURE DOCUMENTS" shall mean the Debentures, the Indenture and any
amendments, restatements, supplements or modifications thereto or any
refinancings, replacements or refundings thereof.
"DEBENTURE HOLDERS" shall mean, collectively, the holder or holders
from time to time of the Debentures.
"DEBENTURES" shall mean the $100,000,000 in aggregate principal amount
of debentures due March, 2005, issued by Cone ▇▇▇▇▇ pursuant to the Indenture
and any amendments, restatements, supplements or modifications thereto or any
refinancings, replacements or refundings thereof.
"DEBENTURE TRUSTEE" shall mean The Bank of New York, as successor to
Wachovia Bank, N.A. (formerly known as Wachovia Bank of North Carolina, N.A.),
as trustee for the Debenture Holders under the Indenture, and its successors and
assigns.
"INTERCREDITOR AGREEMENT" shall mean the Securitization Intercreditor
Agreement, dated as of January 28, 2000, among the Purchaser, the Seller, Cone
▇▇▇▇▇, the Collateral Agent, the Operating Agent and the Creditor Collateral
Agents and any amendments, restatements, supplements or modifications to or
replacements of such document.
"▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇ Guaranty Trust Company of New York and its
successors and assigns.
"▇▇▇▇▇▇ SWAP AGREEMENT" shall mean the ISDA Master Agreement, dated as
of July 20, 1998, between Cone ▇▇▇▇▇ and ▇▇▇▇▇▇ as supplemented by a letter
agreement, dated as of July 20, 1998, and any amendments, restatements,
supplements or modifications to or any refinancings, replacements or refundings
of any of the foregoing documents.
"PRUDENTIAL" shall mean The Prudential Insurance Company of America and
its successors and assigns.
"PRUDENTIAL NOTE DOCUMENTS" shall mean the Note Purchase Agreement, dated as
of August 13, 1992, between Cone ▇▇▇▇▇ and Prudential and the Senior Note, dated
as of August 13, 1992, executed by Cone ▇▇▇▇▇ in favor of Prudential in the
original stated principal amount of $75,000,000 and any amendments,
restatements, supplements or modifications to or any refinancings,
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replacements or refundings of any of the foregoing documents.
"SECOND AMENDMENT" shall mean the Second Amendment to Securitization
Agreements, dated as of January 28, 2000, among the Seller, the Purchaser, Cone
▇▇▇▇▇, the Operating Agent and the Collateral Agent.
"SENIOR LEASE CREDITOR" shall mean SunTrust Bank, Atlanta, and its successors
and assigns.
"SENIOR LEASE DOCUMENTS" shall mean (i) the Master Lease Agreement, dated as
of October 24, 1994, between Cone ▇▇▇▇▇ as lessee and TCB Realty II Corporation
as lessor as assigned to Atlantic Financial Group, Ltd. pursuant to the
Assignment Agreement dated as of April 15, 1999 among Citicorp Leasing, Inc. and
the Senior Lease Creditor, (ii) the Loan Agreement, dated as of October 24, 1994
(the "DEVELOPMENT LOAN AGREEMENT") between Atlantic Financial Group, Ltd. (as
successor to TCB Realty II Corporation) as borrower and the Senior Lease
Creditor (as successor to Citicorp Leasing, Inc.) as lender, (iii) the other Key
Agreements (as defined in the Development Loan Agreement), and (iv) any
amendments, restatements, supplements or modifications to or any refinancings,
replacements or refundings of any of the foregoing documents.
(E) The Purchase Agreement is hereby further amended by adding the following
new paragraph (k) at the end of Annex 5.02(a) thereto:
(k) Credit Facility Reports and Monthly Financial Statements.
Concurrently with the delivery thereof to the Credit Facility Lender Agent and
the Credit Facility Lenders, copies of (i) each Borrowing Base Certificate and
Compliance Certificate required to be delivered pursuant to Section 9.1(g) of
the Credit Facility and (ii) the monthly balance sheets and statements of
income, stockholders' equity and cash flows required to be delivered pursuant to
Section 9.1(h) of the Credit Facility.
(F) The Transfer Agreement is further amended by deleting Schedule 4.03(k)
thereto in its entirety and by substituting the replacement Schedule 4.03(k)
attached to this Amendment in lieu thereof.
(G) The Purchase Agreement is hereby further amended by deleting Exhibit
5.03(b) thereto in its entirety and by substituting the replacement Exhibit
5.03(b) attached to this Amendment in lieu thereof.
2. NO OTHER AMENDMENTS. Except for the amendments expressly set forth
and referred to in Section 1 above, the Securitization Agreements shall remain
unchanged and in full force and effect.
3. 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) 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) 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
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(except to the extent that any such representations or
warranties expressly referred to a specific prior date). Any
breach in any material respect by either Company of any of its
representations and warranties contained in this Section 3 shall
be a Termination Event and an Event of Servicer Termination for
all purposes of the Securitization Agreements.
4. 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.
5. WAIVER BY THE SELLER AND CONE ▇▇▇▇▇. Each of the Seller and Cone
▇▇▇▇▇ 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 date hereof in connection with any of the
Securitization Agreements or the transactions contemplated thereunder.
6. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective,
upon the 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 Intercreditor Agreement, duly
executed, completed and delivered by each of the Companies, Redwood,
the Collateral Agent, the Operating Agent and the Creditor Collateral
Agents;
(c) the receipt by the Operating Agent of the initial Borrowing Base Certificate
and the initial Compliance Certificate required to be delivered by Cone ▇▇▇▇▇
pursuant to Section 9.1(g) of the Credit Facility;
(d) the receipt by the Operating Agent of financial projections for Cone ▇▇▇▇▇
and its Subsidiaries for their fiscal year ending December 31, 2000, to include
(i) quarterly income statements, balance sheets, cash flow projections and
financial covenant calculations for such period and (ii) 13-week consolidated
cash flow projections for Cone ▇▇▇▇▇ and its subsidiaries commencing with the
week starting January 17, 2000;
(e) the receipt by the Operating Agent of an Incumbency Certificate from CRLLC
in the form of Exhibit A attached hereto and such other documents, certificates,
instruments and opinions of counsel as Redwood, the Collateral Agent or the
Operating Agent may reasonably request; and
(f) 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.
7. REIMBURSEMENT OF EXPENSES. Each Company hereby agrees that it
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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.
8. 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.
9. 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.
10. 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.
11. 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
understandings, if any, relating to the subject matter hereof.
12. CONE ▇▇▇▇▇' AND GECC'S CAPACITIES. Cone ▇▇▇▇▇ 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 ▇▇▇▇▇" 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.
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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
REDWOOD RECEIVABLES
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
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CONE ▇▇▇▇▇ CORPORATION, AS AN ORIGINATOR
AND AS SERVICER
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, AS OPERATING AGENT
AND AS COLLATERAL AGENT
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Duly Authorized Signatory
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