Exhibit 2.3.10
TENTH AMENDMENT TO SECURITIZATION AGREEMENTS
THIS TENTH AMENDMENT TO SECURITIZATION AGREEMENTS (this "Amendment"),
made and entered into as of September 5, 2003 (THE "effective Date"), by and
among CONE RECEIVABLES II LLC, a North Carolina limited liability company
("CRLLC"), CONE ▇▇▇▇▇ CORPORATION, a North Carolina corporation ("Cone ▇▇▇▇▇");
CONE FOREIGN TRADING LLC, a North Carolina limited liability company ("CFT";
each of CRLLC, Cone ▇▇▇▇▇ and CFT being herein referred to as a "Company" and
collectively as the "Companies"), and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation ("GECC"), acting in its capacities as the Purchaser and as
the Operating Agent (as such terms are defined in the Purchase Agreement
referenced below).
W I T N E S E T H:
WHEREAS, Cone ▇▇▇▇▇ and CRLLC entered into that 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 ▇▇▇▇▇
agreed (and each Subsidiary of Cone ▇▇▇▇▇ which thereafter becomes an Originator
will agree) to sell, contribute or otherwise transfer to CRLLC, and CRLLC 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 Receivables Corporation ("Redwood"),
as Purchaser, Cone ▇▇▇▇▇, as Servicer, and GECC, as Operating Agent and as
Collateral Agent, entered into that 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 are
herein collectively referred to as the "Securitization Agreements"), whereby
Purchaser 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 entered into that certain Assignment
Agreement, dated as of April 23, 2001 (the "Redwood Assignment"), under which
Redwood assigned and delegated to GECC, pursuant to Section 2.05 of the
Liquidity Loan Agreement, all of Redwood's rights, titles and interests in and
to, and all of Redwood's obligations under, the Purchase Agreement and the other
Related Documents; 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, that certain Fifth Amendment to Securitization Agreements, dated as of
June 30, 2000, among such parties, that certain Sixth Amendment to
Securitization Agreements, dated as of December 11, 2000, among such parties,
that certain Seventh Amendment to Securitization Agreements, dated as of April
23, 2001, among such parties, that certain Eighth Amendment to Securitization
Agreements, dated as of July 10, 2001; among such parties, that certain Ninth
Amendment to Securitization Agreements, dated as of November 9, 2001, and
WHEREAS, the Companies have 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, including without limitation the fulfillment of
the conditions precedent specified in Section 6 below, Annex X to the Transfer
Agreement and the Purchase Agreement shall be amended by deleting therefrom the
definitions of the terms "Cash Reserve", "Concentration Discount Amount",
"Purchase Discount Rate Cap" and by substituting the following new respective
definitions of such terms in lieu thereof:
"Cash Reserve" shall mean zero dollars ($0.00).
"Concentration Discount Amount" means, with respect to (i)
Levi ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ Canada, Levi ▇▇▇▇▇▇▇ Europe and the
Affiliates thereof (collectively, the "Levi ▇▇▇▇▇▇▇ Obligors"), 5.0%
and (ii) any Obligor that is not a Levi ▇▇▇▇▇▇▇ Obligor, and as of any
date of determination thereof, 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 ▇▇▇▇▇'▇ (and, if such Obligor is rated by both agencies and
has a split rating, the applicable rating will be the lower of the
two):
----------------------- ------------------------- ---------------------
MINIMUM S&P RATING MINIMUM ▇▇▇▇▇'▇ 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%
----------------------- ------------------------- ---------------------
Below A-2 or BBB+ Below P-2 or Baa1 5.0%
or not rated by or not rated by
either S&P or ▇▇▇▇▇'▇ either S&P or ▇▇▇▇▇'▇
----------------------- ------------------------- ---------------------
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
▇▇▇▇▇'▇, then such Obligor's Concentration Discount Amount will be 5.0%
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.
"Purchase Discount Rate Cap" shall mean a rate equal to
eighty-five percent (85%) with respect to that portion of the
Investment Base which consists of Eligible Receivables; other than ▇▇▇▇
and Hold Receivables and fifty percent (50%) with respect to that
portion of the Investment Base which consists of Eligible Receivables
which are ▇▇▇▇ and Hold Receivables; provided, that the Purchase
Discount Rate Cap may be changed at any time at the sole discretion of
the Operating Agent, exercises in good faith.
2. No Other Amendments. Except for the amendment 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 GECC (in its capacity as Purchaser and the Operating Agent) that (i)
this Amendment has been duly authorized, executed and delivered by each Company,
(ii) except as disclosed in the reservationof rights letter dated August 27,
2003 from GEEC to CRLLC and Cone ▇▇▇▇▇, and 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 representations or
warranties 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.
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. Conditions to Effectiveness. This Amendment shall become effective
as of the Effective Date subject to the satisfaction on or prior to such date of
the following conditions precedent to such effectiveness: (i) the receipt by the
Operating Agent of one or more counterparts of this Amendment, duly executed,
completed and delivered by each of the Companies, the Purchaser and the
Operating Agent, (ii) the receipt by the Operating Agent of payment (for the
benefit of GECC as Purchaser) of an amendment fee in the amount of $150,000
which fee shall be fully earned and non-refundable upon payment.
7. Reimbursement of Expenses. Each Company hereby agrees that it shall
reimburse the Purchaser 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 ▇▇▇▇▇' 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 Purchaser and as the
Operating Agent, and all references herein to "GECC" shall be deemed to include
it in all 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: Secretary
CONE ▇▇▇▇▇ CORPORATION, as an
Originator and as Servicer
By /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
CONE FOREIGN TRADING LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
as Purchaser, Operating Agent and Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Duly Authorized Signatory