Exhibit 2.1(e)
THIRD AMENDMENT TO SECURITIZATION AGREEMENTS
THIS THIRD AMENDMENT TO SECURITIZATION AGREEMENTS (this "Amendment"), made
and entered into as of March 31, 2000 (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, 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 that certain Second Amendment
to Securitization Agreements, dated as of January 28, 2000, among the parties
hereto; and
WHEREAS, Cone Xxxxx 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:
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1. Amendments of Securitization Agreements. Subject to the terms and
conditions of this Amendment, the Securitization Agreements shall be amended as
follows:
(a) The definition of the term "Applicable Margin" set forth in Annex 3 to
the Purchase Agreement shall be deleted in its entirety and the following
revised definition of such term shall be substituted in lieu thereof:
"Applicable Margin" shall mean 2.0% as of the Third Amendment Effective
Date, but the Applicable Margin shall be subject to adjustment (upwards or
downwards) prospectively on a quarterly basis as determined by Cone Xxxxx' Fixed
Charge Coverage Ratio (as defined in Annex G) for the Rolling Period (as defined
in Annex G) for the immediately preceding fiscal quarter of Cone Xxxxx, with the
initial adjustment (if needed) to be effective on the fifth (5th) Business Day
after the Operating Agent's receipt of Cone Xxxxx' quarterly financial
statements and Compliance Certificate (as defined in Annex G) meeting the
requirements of paragraph (c) of Annex G for Cone Xxxxx' fiscal quarter ending
July 2, 2000 and with each succeeding adjustment (if needed) to be effective on
the fifth (5th) Business Day after Operating Agent's receipt of such quarterly
financial statements and Compliance Certificate for each succeeding fiscal
quarter of Cone Xxxxx. Each quarterly adjustment in the Applicable Margin will
be determined by reference to the Fixed Charge Coverage Ratio of Cone Xxxxx and
its Subsidiaries for the Rolling Period ending with such fiscal quarter as shown
in such financial statements and Compliance Certificate as follows:
If such Fixed Charge Then the Applicable
Coverage Ratio is: Margin will be:
greater than or equal to 1.0:1.0 0.50%
greater than or equal to 0.75:1.0 but less than 1.0:1.0 1.00%
greater than or equal to 0.50:1.0 but less than 0.75:1.0 1.50%
greater than or equal to 0.31:1.0 but less than 0.50:1.0 2.00%
less than 0.31:1.0 2.50%
If the Operating Agent does not receive delivery of Cone Xxxxx' quarterly
financial statements and Compliance Certificate for any fiscal quarter ending on
or after October 3, 1999 in accordance with and by the deadline specified in
Annex 5.02(a), such failure shall (in addition to any other remedy provided in
the Related Documents) result in an increase in the Applicable Margin to the
highest rate specified above until the fifth (5th) Business Day following the
date on which the Operating Agent receives such financial statements and
Certificate of Compliance (at which time such adjustment in the Applicable
Margin shall become effective). If a Termination Event or Incipient Termination
Event shall have occurred and be continuing at any time, the Applicable Margin
may, in the Purchaser's discretion, be increased to the highest rate specified
above until the fifth (5th) Business Day after the date on which such
Termination Event or Incipient Termination Event is waived, cured or otherwise
ceases to exist.
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(b) Annex G to the Purchase Agreement shall be deleted in its entirety and
the revised Annex G attached to this Amendment shall be substituted in lieu
thereof.
(c) Annex X to the Securitization Agreements shall be further amended by
adding the following new definition thereto:
"Third Amendment Effective Date" shall mean March 31, 2000.
(d) Annex X to the Securitization Agreements shall be further amended by
deleting therefrom the definition of the term "Fee Letter" and by substituting
the following new definition of such term in lieu thereof:
"Fee Letter" shall mean that certain letter agreement dated March 31,
2000 among the Seller, Cone Xxxxx and the Purchaser.
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)
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) 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 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 Xxxxx. Each of the Seller and Cone Xxxxx
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.
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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 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; and (c) the receipt by the Operating Agent of
the amendment fee due in connection with this Amendment under the Fee Letter.
7. 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.
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 supersede all prior agreements, representations and
understandings, if any, relating to the subject matter hereof.
12. 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
REDWOOD RECEIVABLES CORPORATION
By: /s/Xxx Xxxxx
Name: Xxx Xxxxx
Title: Assistant Secretary
CONE XXXXX CORPORATION, as an
Originator and as Servicer
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: EVP and CFO
GENERAL ELECTRIC CAPITAL
CORPORATION as Operating Agent
and as Collateral Agent
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Duly Authorized Signatory
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