40
Exhibit 2.1(g)
RECEIVABLES PURCHASE TERMINATION
AND REASSIGNMENT AGREEMENT
THIS AGREEMENT is made and entered into as of September 1, 1999, among CONE
RECEIVABLES LLC, a Delaware limited liability company (the "Seller"), CONE MILLS
CORPORATION, a North Carolina corporation ("Cone Mills") acting in its
individual capacity and as Servicer under the Receivables Purchase Agreement
described below, and DELAWARE FUNDING CORPORATION, a Delaware corporation (the
"Buyer"). Statement of Facts Pursuant to a Purchase Agreement, dated as of March
25, 1997, as amended (the "Purchase Agreement"), between Cone Mills and the
Seller, the Seller has purchased from time to time from Cone Mills certain trade
receivables resulting from the sale of goods or services to customers of Cone
Mills. Pursuant to a Receivables Purchase Agreement, dated as of March 25, 1997,
as amended (the "Receivables Purchase Agreement"), among the Seller, Cone Mills
(as the Servicer and in its individual capacity), and the Buyer, the Buyer has
purchased from time to time from the Seller certain undivided percentage
ownership interests in such receivables and Cone Mills (as the Servicer) has
serviced and administered or caused to be serviced and administered such
receivables. The parties desire to terminate the Purchase Agreement and the
Receivables Purchase Agreement (collectively, the "Purchase Agreements") and to
provide for the reassignment by the Buyer of such undivided percentage ownership
interests to the Seller and the reassignment by the Seller of such receivables
to Cone Mills, all in accordance with and subject to the terms and conditions of
this Agreement. Statement of Terms NOW, THEREFORE, in consideration of the
mutual covenants herein set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows: 1. Definitions. Unless otherwise expressly defined herein, all
capitalized terms used herein shall have the respective meanings given such
terms in the Purchase Agreements. 2. Reconveyance of Purchased Interest. (a)
Subject to the terms and conditions of this Agreement, the Buyer hereby assigns,
transfers and conveys to the Seller, without recourse, except as specifically
set forth herein, and the Seller hereby purchases and accepts assignment and
transfer from the Buyer of, all of the Buyer's rights, titles and interests in
and to the Purchased Interest. In consideration for such transfer and
assignment, the Seller shall pay to the Buyer at or before 12:00 p.m. (New York
city time) on this date, in immediately available funds, an amount (the
"Reconveyance Amount") equal to the sum of the following: (i) Net Investment $
50,000,000.00 (ii) Accrued but unpaid
Discount.................................... $ 16,393.65 (iii) Accrued but
unpaid fees............................................. $ -0- (iv) Other
Aggregate Unpaids (describe).................................. $-0- (v) Total
Reconveyance Amount (sum of (i) through (iv) above)..$50,016,393.65 (b) Payment
of the Reconveyance Amount shall be made by the Seller to the Buyer by way of a
wire transfer of immediately available funds directed as follows: Bank Name:
Morgan Guaranty Trust Company of New York City and State: New York, New York ABA
Routing No.: 021-000-238 Account Name: Delaware Funding Corporation Account No.:
600-28-005 Ref: Cone Receivables LLC 3. Reconveyance of Purchased Assets.
Subject to the terms and conditions of this Agreement, the Seller hereby sells,
sets over, assigns, transfers, and conveys to Cone Mills, without recourse,
except as specifically set forth herein, and Cone Mills hereby accepts,
purchases and receives, all of the Seller's rights, titles and interests in and
to the Purchased Assets, the Lockbox Accounts, and all monies, instruments,
securities, documents and other property now or hereafter on deposit in or
credited to the Lockbox Accounts (collectively, the "Reconveyed Property"). In
consideration of the Seller's transfer and conveyance hereunder to Cone Mills of
the Reconveyed Property, Cone Mills shall pay a purchase price (the "Purchase
Price") equal to 100% of the Outstanding Balance as of this date of the
Receivables conveyed hereunder by the Seller to Cone Mills, which price shall be
payable by Cone Mills on this date as follows: (i) Cone Mills shall pay to such
account or person as may be directed by the Seller an amount, in immediately
available funds, equal to the Purchase Price less the aggregate outstanding
principal and accrued interest balance as of this date of the Subordinated Loans
and (ii) Cone Mills shall apply in payment of the balance of the Purchase Price
the aggregate outstanding principal and accrued interest balance of the
Subordinated Loans as of this date. 4. Termination of Purchase Agreements. Upon
the effectiveness of this Agreement, the Purchase Agreements shall terminate and
all obligations of the parties thereunder (including without limitation any and
all obligations thereunder to purchase, sell or service the Receivables, the
Related Security and the Collections) shall terminate, except that (i) the
indemnification and payment provisions set forth in Sections 4.11, 8.01, 8.02
and 8.03 of the Receivables Purchase Agreement as well as the agreement set
forth in Section 8.20 of the Receivables Purchase Agreement shall be continuing
and shall survive the execution and delivery of this Agreement and the
termination of the Receivables Purchase Agreement, and (ii) the indemnification
and payment provisions of Article VII of the Purchase Agreement as well as the
agreement set forth in Section 8.10 of the Purchase Agreement shall be
continuing and shall survive the execution and delivery of this Agreement and
the termination of the Purchase Agreement. 5. Mutual Releases. Upon the
effectiveness of this Agreement, each of the Seller, Cone Mills and the Buyer
(each such party being referred to as a "Releasing Party") shall be deemed to
have (a) released and forever discharged each of the other parties hereto and
their respective subsidiaries, agents, employees, officers, directors,
attorneys, affiliates, successors and assigns (collectively, the "Released
Parties") of and from any and all liabilities, claims, suits, obligations,
indebtedness, liens, losses, causes of action , demands, rights, damages, costs
and expenses of any kind, character or nature whatsoever, whether known or
unknown, whether fixed or contingent, and whether liquidated or unliquidated,
that such Releasing Party may have or claim to have against any such Released
Party and which arises out of or is connected in any way with any action of
commission or omission of any Released Party existing or occurring on or prior
to the date of this Agreement, including without limitation any claims,
liabilities or obligations relating to or arising out of or in connection with
any of the Purchase Agreements or any of the transactions contemplated by any of
the Purchase Agreements, from the beginning of time until the execution and
delivery of this Agreement (collectively, the "Released Claims") and (b) agrees
forever to refrain from commencing, instituting or prosecuting any law suit,
action or other proceeding against any of the Released Parties with respect to
any of such Released Claims; provided, however, that the Released Claims do not
include, and the releases and covenants-not-to-sue set forth in this Section 5
shall not apply to, the Released Parties' respective representations,
warranties, covenants and other obligations under this Agreement. 6.
Effectiveness of this Agreement. This Agreement shall be effective as of this
date upon the satisfaction of all of the following conditions precedent: (a) One
or more counterparts of this Agreement shall have been executed and delivered by
the Seller, Cone Mills and the Buyer; and (b) The Buyer shall have received
payment of the Reconveyance Amount in accordance with Section 2(b) above. 7.
Further Assurances. Each of the Seller and Buyer hereby agrees to execute and
deliver such Uniform Commercial Code termination statements, Lockbox Account
transfers or instructions, and such other documents as Cone Mills may reasonably
request from time to time in order to more fully effectuate the transactions
contemplated by this Agreement; provided, however, that any and all such
termination statements, Lockbox Account transfers or instructions, and other
documents shall be prepared and/or recorded at Cone Mills' expense. 8.
Representations and Warranties. (a) Each of the parties hereto represents and
warrants that it has the full corporate or other power and authority to execute
and deliver this Agreement and to perform its obligations hereunder and that
this Agreement has been duly and validly executed and delivered by it (and
assuming the due and valid execution and delivery hereof by all other parties
hereto) constitutes a legal, valid and binding obligation of such party
enforceable against it in accordance with its terms, except as the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws of general application relating to or affecting the
enforcement of creditors' rights or by general principles of equity. (b) The
Seller hereby represents and warrants that the Reconveyed Property is owned by
the Seller free and clear of all Liens (other than any Permitted Liens) and the
Seller has not sold, pledged, assigned, transferred or subjected to a Lien any
of the Reconveyed Property, other than the conveyance of the Purchased Interest
to the Buyer under the Receivables Purchase Agreement. (c) The Buyer hereby
represents and warrants that the Purchased Interest is owned by the Buyer free
and clear of any Lien (other than any Permitted Liens) and, except as provided
in Section 8.17 of the Receivables Purchase Agreement, the Buyer has not sold,
pledged, assigned, transferred or subjected to a Lien any of the Purchased
Interest. The Buyer further represents and warrants that, upon the effectiveness
of this Agreement and the Buyers receipt of the Reconveyance Amount in
accordance with Section 2(b) above, no Aggregate Unpaids shall be outstanding
and the Seller and Cone Mills will not be indebted to the Buyer for any reason
under the Purchase Agreements or any of the other Purchase Documents (except
with respect to (i) the Seller's and Cone Mills' respective representations,
warranties, covenants and other obligations under this Agreement and (ii) the
provisions of the Receivables Purchase Agreement which shall survive the
termination of the Purchase Agreement as specified in clause (i) of Section 4
above; provided, however, that all or a portion of such indebtedness shall be
reinstated in the event and to the extent that any payment thereof is rescinded
or must otherwise be disgorged or returned by the Buyer upon the insolvency,
dissolution, liquidation, bankruptcy or reorganization of the Seller of Cone
Mills or upon or as a result of the appointment of a trustee, receiver or
conservator or similar officer for the Seller or Cone Mills or any substantial
part of its property). By signing on behalf of the Buyer below, Morgan Guaranty
Trust Company of New York hereby represents and warrants that it is the duly
authorized and existing attorney-in-fact for the Buyer and is authorized and
empowered to execute and deliver this Agreement on behalf of the Buyer and to
bind the Buyer to this Agreement. 9. Parties' Intent. It is the express intent
and understanding of the parties hereto that this Agreement shall vest in the
Seller all the right, title and interest of the Buyer in and to the Purchased
Interest and constitutes a valid sale of the Purchased Interest by the Buyer to
the Seller enforceable against all creditors of and all purchasers from the
Buyer and that this Agreement vests in Cone Mills all the right, title and
interest of the Seller in and to the Reconveyed Property and constitutes a valid
sale of the Reconveyed Property by the Seller to Cone Mills enforceable against
all creditors of and purchasers from the Seller. 10. Third Party Beneficiaries.
The parties hereto acknowledge and agree that this Agreement and the
transactions contemplated hereby will be relied upon by Cone Receivables II LLC
(the "New Seller"), Redwood Receivables Corporation (the "New Buyer") and
General Electric Capital Corporation as Collateral Agent and Operating Agent
("GE Capital") in connection with the transfer from and after this date by Cone
Mills of the Reconveyed Property to the New Seller and the transfer from and
after this date by the New Seller to the New Buyer of certain interests in the
Reconveyed Property, all as contemplated by the Receivables Purchase and
Servicing Agreement, dated as of the date hereof, among Cone Mills (as
Servicer), the New Seller, the New Buyer and GE Capital and the related
Receivables Transfer Agreement, dated as of the date hereof, among the New
Seller, Cone Mills and certain affiliates of the Originator (collectively, the
"New Purchase Agreements"). It is the express understanding and agreement of the
parties that each of the New Seller, the New Buyer and GE Capital is intended to
be a third party beneficiary of (i) all of the representations, warranties and
covenants of the Seller and Cone Mills contained in this Agreement and (ii) all
of the representations and warranties of the Buyer contained in Section 8(c) of
this Agreement. 11. Miscellaneous. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. This Agreement may be executed in any
number of several counterparts, and each such counterpart shall constitute an
original and all such counterparts together shall constitute one and the same
instrument. 12. No Petition. Each of the Seller and Cone Mills agrees (and, by
accepting this Agreement below, each of the New Seller, the New Buyer and GE
Capital also agrees) that, prior to the date which is one year and one day after
the date upon which all obligations of the Seller to the Buyer under the
Receivables Purchase Agreement are paid in full, such person will not institute
against, or join any other person in instituting against, the Buyer any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other similar proceeding under the laws of the United States or any state of the
United States. (remainder of page intentionally left blank)
IN WITNESS, each
of the parties hereto, by their respective duly authorized signatories, has
executed and delivered this Agreement as of the date first above written.
DELAWARE FUNDING CORPORATION By: Morgan Guaranty Trust Company of New York, as
Attorney-In-Fact for Delaware Funding Corporation By: /s/ Richard Burke Name:
Richard Burke Title: Vice President CONE RECEIVABLES LLC By: Cone Mills
Corporation, its sole Member By: /s/ David E. Bray Name: David E. Bray Title:
Treasurer CONE MILLS CORPORATION By: /s/ David E. Bray Name: David E. Bray
Title: Treasurer ACCEPTED: CONE RECEIVABLES II LLC By: /s/ Brandon Carrey Name:
Brandon Carrey Title: President REDWOOD RECEIVABLES CORPORATION By: /s/ Denis
Creeden Name: Denis Creeden Title: Assistant Secretary GENERAL ELECTRIC CAPITAL
CORPORATION, as Operating Agent and Collateral Agent By: /s/ Craig Winslow Name:
Craig Winslow Duly Authorized Signatory
COLLATERAL AGENT CONSENT AND RELEASE
In order to induce the Seller, Cone Mills and the Buyer to execute, deliver and
perform the within and foregoing Receivables Purchase Termination and
Reassignment Agreement (the "Agreement"; all capitalized terms used herein, and
not otherwise defined herein, shall have the meanings given such terms in the
Agreement), the undersigned Collateral Agent hereby consents to the Buyer's
reconveyance of the Purchased Interest to the Seller in accordance with the
terms and conditions of the Agreement and releases all of the Collateral Agent's
rights, titles and interests in and to the Purchased Interest. MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, as Collateral Agent By: /s/ Richard Burke Name:
Richard Burke Title: Vice President