OMNIBUS AMENDMENT AND AGREEMENT
THIS OMNIBUS AMENDMENT, dated as of August 30, 2005 (this “Amendment”), is
entered
into by and among Cofina Funding, LLC (the “Issuer”), Cofina Financial,
LLC (the “Servicer”),
Cenex Finance Association, Inc. (the “Guarantor”), Bank Hapoalim B.M. (the
“Funding Agent”)
and U.S. Bank National Association, as Trustee (in such capacity, the
“Trustee”) and as
Custodian (in such capacity, the “Custodian”), in each of the capacities
in which they appear in
the Agreements (defined below). Capitalized terms used but not defined
herein have the
meanings provided in the Indenture (defined below).
RECITALS
A. Reference is hereby made to (i) that certain Base Indenture, dated as of
August 10, 2005 (the “Base Indenture”), between the Issuer and the
Trustee, and that certain
Series 2005-A Supplement, dated as of August 10, 2005 (the
“Series Supplement” and together
with the Base Indenture, the “Indenture”), (ii) that
certain Note Purchase Agreement, dated as of
August 10, 2005 (the “Note Purchase Agreement”), by and among the
Issuer, the Funding Agent
and the financial institutions from time to time party thereto as
Committed Purchasers, (iii) that
certain Purchase and Contribution Agreement, dated as of August 10, 2005
(the “Purchase and
Contribution Agreement”), by and among Cenex Finance Association, Inc., as
Seller, Cofina
Financial, LLC, as Purchaser, and the other Sellers from time to time
party thereto, (iv) that
certain Purchase and Sale Agreement, dated as of August 10, 2005 (the
“Purchase Agreement”),
by and among the Cofina Financial, LLC, as Seller, and the Issuer, (v)
that certain Servicing
Agreement, dated as of August 10, 2005 (the “Servicing
Agreement”), by and among the Issuer,
the Servicer and the Trustee, (vi) that certain Guaranty, dated as of
August 10, 2005 (the
“Guaranty”), by the Guarantor, in favor of the Funding Agent
for the benefit of the Purchasers (as defined in the Note Purchase
Agreement) under the Note Purchase Agreement, the Trustee and the Secured
Parties, (vii) that certain Custodian Agreement, dated as of August 10,
2005, between the Issuer and U.S. Bank National Association, as Trustee
and Custodian, and (viii) the other Transaction Documents (as defined in
the Indenture) (collectively, the documents referred to in clauses (i)
through (viii) above, the “Agreements”).
B. The parties to the Agreements desire to enter into this Amendment
to increase the maximum facility amount available to the Issuer under the Agreements.
1. Amendment to Agreements. The “Maximum Funded Amount” and the
“Swingline Facility Limit” (each as defined in the Note Purchase
Agreement), the “Maximum
Principal Amount” (as defined in the Series Supplement), the maximum
aggregate principal
amount of the Cofina Variable Funding Asset-Backed Note, Series 2005-A,
and any similar
references or definitions in the Agreements shall be increased from
$150,000,000.00 to
$200,000,000.00.
2. Covenants. The Issuer hereby covenants and agrees, on or prior
to the
date hereof, to execute and deliver a new Note in the amount of
$200,000,000.00 to the Funding
Agent. The Funding Agent hereby covenants and agrees that, upon receipt of
the executed Note
for $200,000,000.00, it shall promptly destroy the prior executed Note in
the amount of
$150,000,000.00.
3. Conditions Precedent. This Amendment shall become effective as
of the
date hereof when the Funding Agent shall have received an original
counterpart (or counterparts)
of this Amendment, executed and delivered by each of the parties hereto, or
other evidence
satisfactory to the Funding Agent of the execution and delivery of this
Amendment by such
parties.
4. Reaffirmation of Covenants, Representations and Warranties. Upon
the
effectiveness of this Amendment, each of the Issuer, the Servicer and the
Guarantor hereby
reaffirms all covenants, representations and warranties made in the
Agreements and agrees that
all such covenants, representations and warranties shall be deemed to have
been remade as of the
effective date of this Amendment (except for such representations and
warranties that are limited
by their terms to an earlier date, in which case such representations and
warranties shall speak of
such date).
5. Representations and Warranties. Each of the Issuer,
the Servicer and the
Guarantor hereby represents and warrants that (i) this Amendment
constitutes a legal, valid and
binding obligation of such Person, enforceable against it in accordance
with its terms, and (ii)
upon the effectiveness of this Amendment, no Event of Default shall exist
under the Agreements.
6. Reaffirmation of Guaranty. Without limiting the generality of
the
foregoing, the Guarantor hereby reaffirms all of its obligations under the
Guaranty, both before
and after giving effect to this Amendment, and the Guaranty is hereby
ratified and confirmed.
7. Effect of Amendment. Except as expressly amended and modified by
this
Amendment, all provisions of the Agreements shall remain in full force and
effect. After this Amendment becomes effective, all references in each of
the Agreements to “this Agreement”, “hereof’, “herein”, or words of
similar effect referring to such Agreement shall be deemed to be
references to the applicable Agreement as amended by this Amendment. This
Amendment shall not be deemed to expressly or impliedly waive, amend or
supplement any provision of the Agreements other than as set forth herein.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, and each
counterpart shall be
deemed to be an original, and all such counterparts shall together
constitute but one and the same
instrument.
9. Governing Law. This Amendment shall be governed by, and
construed in
accordance with the law of the State of New York (without reference to its
conflict of law provisions other than Section 5-1401 of the New York
General Obligations Law).
10. Section Headings. The various headings of this Amendment are
inserted
for convenience only and shall not affect the meaning or interpretation of
this Amendment, or the Agreements or any provision hereof or thereof.
It. Authorization/Direction. Pursuant to the Indenture, the Issuer
hereby
authorizes and directs the Trustee to authenticate that certain Cofina
Variable Funding Asset-
Backed Note, Series 2005-A, dated as of the date hereof, in the initial
face amount of
$200,000,000.00 and deliver the same to the Funding Agent.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of
the date first above written.
| COFINA FUNDING, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| COFINA FINANCIAL, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| CENEX FINANCE ASSOCIATION, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| U.S. BANK NATIONAL ASSOCIATION, as | ||||||
| Trustee and Custodian | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BANK HAPOALIM B.M. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||