Exhibit 2.3.5
FIFTH AMENDMENT TO SECURITIZATION AGREEMENTS
THIS FIFTH AMENDMENT TO SECURITIZATION AGREEMENTS (this
"Amendment"), made and entered into as of June 30, 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:
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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 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, that certain Second Amendment to
Securitization Agreements, dated as of January 28, 2000, among the parties
thereto, that certain Third Amendment to Securitization
Agreements, dated as of March 31, 2000, among the parties thereto, that certain
Fourth Amendment to Securitization Agreements and Additional Originator Joinder
Agreement, dated as of April 24, 2000, among such parties, 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 amendment 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. Amendment of Securitization Agreements. Subject to the terms and
conditions of this Amendment, including without limitation the fulfillment of
the conditions precedent specified in Section 6 below, 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 14, 2000, Cone Xxxxx 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.
2. No Other Amendments. Except for the amendment of the Securitization
Agreements 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 (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 date of this
Amendment, 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 date of this Amendment (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 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.
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5. 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 date of this Amendment in connection with any of the Securitization
Agreements or the transactions contemplated thereunder.
6. Condition Precedent to Effectiveness. This Amendment shall become
effective, as of the date of this Amendment, upon 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.
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 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.
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 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.
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/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: President
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REDWOOD RECEIVABLES
CORPORATION
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Administrative Secretary
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CONE XXXXX CORPORATION, as an Originator
and as Servicer
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Executive Vice President
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CONE FOREIGN TRADING LLC
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Executive Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION, as Operating Agent and as
Collateral Agent
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Duly Authorized Signatory
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