Exhibit 2.4
AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
AMENDMENT dated as of November 15, 1994 (this "Amendment") of a
Receivables Purchase Agreement dated as of August 11, 1992, as amended (as
amended, the "Receivables Purchase Agreement") between CONE MILLS
CORPORATION (the "Seller") and DELAWARE FUNDING CORPORATION (the "Buyer").
Terms defined in the Receivables Purchase Agreement and not otherwise
defined herein have the same meaning when used herein.
WITNESSETH:
WHEREAS, the Seller and the Buyer are parties to the Receivables
Purchase Agreement; and
WHEREAS, the Seller and the Buyer desire to amend certain
provisions of the Receivables Purchase Agreement;
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants hereinafter set forth and intending to be legally bound
hereby, agree as follows:
ARTICLE I. Amendment to the Receivables Purchase Agreement.
Subject to the satisfaction of the conditions precedent specified
in Article IV hereof, the Receivables Purchase Agreement and the exhibits
thereto shall be amended as follows:
(a) Section 6.02(h) of the Receivables Purchase Agreement is
amended in its entirety to read "(h) Intentionally left blank."
(b) Section 6.02(i) of the Receivables Purchase Agreement is
amended in its entirety to read as follows:
(i) Adjusted Debt to Capital Ratio. Permit, as of the last day
of any fiscal quarter, the ratio of Adjusted Total Consolidated Debt
as of such date to Adjusted Total Consolidated Capitalization as of
such date to exceed 61%.
For the purpose of this Section 6.02(i):
"Adjusted Total Consolidated Debt" shall mean, as of any date,
the sum for the Seller and its Consolidated Subsidiaries
(determined on a consolidated basis without duplication in
accordance with GAAP) of (a) all liabilities which should be
classified as Debt in accordance with GAAP
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(including without limitation all short-term Debt and the current
portion of all long-term Debt) as of such date plus (b) the
Net Investment as of such date plus (c) eight times the
aggregate rental expense (other than with respect to
capital leases) for the period of four consecutive fiscal
quarters of the Seller ended on or most recently prior to
such date.
"Adjusted Total Consolidated Capitalization" shall mean, as
of any date, the sum for the Seller and its Consolidated
Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) of (a) all liabilities which
should be classified as Debt in accordance with GAAP (including
without limitationall short-term Debt and the current portion of
all long-term Debt) as of such date plus (b) the Net Investment
as of such date plus (c) the aggregate amount of long term
deferred tax liabilities as of such date plus (d) stockholder's equity
as of such date plus (e) the aggregate amount deducted in determining
such stockholders' equity with respect to minority interests in
Subsidiaries that are not Consolidated Subsidiaries all of
the shares of capital stock or other ownership interests of which
(except director's qualifying shares) are at the time directly
or indirectly owned by the Seller plus (f) eight times the aggregate
rental expense (other than with respect to capital leases) for the
period of four consecutive fiscal quarters of the Seller ended on
or most recently prior to such date.
(c) Section 6.02(j) of the Receivables Purchase Agreement is
amended in its entirety to read as follows:
(j) (i) Interest Coverage Test. Permit, as of the last day of
any fiscal quarter, the ratio of EBIT for the period of four
consecutive fiscal quarters then ended, to Consolidated Interest
Expense for the period of four consecutive fiscal quarters then ended
to be less than 2.3:1.
For the purpose of this Section 6.02(j)(i):
"EBIT" shall mean, for any period, the sum for the Seller and
its Consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP) of (a) net income for
such period plus (b) the aggregate amount deducted in determining net
income in respect of Consolidated Interest Expense and income
taxes for such period.
"Consolidated Interest Expense" shall mean, for any period,
for the Seller and its Consolidated Subsidiaries
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(determined on a consolidated basis without duplication in accordance
with GAAP), the interest expense for such period.
(ii) Debt Ratio. Permit, as of the last day of any fiscal
quarter, the percentage of Adjusted Cash Flow for the period of four
consecutive fiscal quarters then ended, to Total Consolidated Debt as
of such date to be less than 26%.
For the purpose of this Section 6.02(j)(ii):
"Adjusted Cash Flow" shall mean, for any period, the sum for
the Seller and its Consolidated Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP)
of (a) net income for such period determined before giving
effect to any net gain or loss with respect to discontinued
operations during such period, plus (b) the aggregate amount
deducted in determining the amount determined pursuant to clause
(a) for such period in respect of (1) depreciation and amortization
and (2) any increase (or minus the aggregate amount added in
respect of any decrease) in deferred tax liabilities.
"Total Consolidated Debt" shall mean, as of any date, the sum
for the Seller and its Consolidat ed Subsidiari es (determine d on
a consolidat ed basis without duplicatio n in accordance with
GAAP) of (a) all liabilitie s which should be classified as Debt
in accordance with GAAP (including without limitation all short-
term Debt and the current portion of all long- term Debt) as of
such date plus (b) the Net Investment as of such date.
ARTICLE II. Representations.
The Seller hereby represents and warrants that, after giving
effect to this Amendment:
(a) the representations and warranties set forth in Section 5.01
of the Receivables Purchase Agreement are true on the date hereof as
if made on and as of the date hereof except as such representations
and warranties specifically relate to an earlier date and as if each
reference to the "Receivables Purchase Agreement" in said Section 5.01
was deemed to be a reference to the Receivables Purchase Agreement as
amended by this Amendment; and
(b) there shall exist no Termination Event or Potential
Termination Event under the Receivables Purchase Agreement.
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ARTICLE III. Status of the Receivables Purchase Agreement.
Except as otherwise expressly provided herein, all terms and
conditions of the Receivables Purchase Agreement are ratified and shall
remain unchanged and continue in full force and effect. Each reference in
the Receivables Purchase Agreement to such Agreement or any exhibit thereto
shall mean and be a reference to the Receivables Purchase Agreement and the
exhibits thereto as amended hereby.
ARTICLE IV. Conditions Precedent.
The amendments to the Receivables Purchase Agreement set forth in
Article I hereof shall become effective upon:
(i) the execution and delivery of this Amendment by each of
the parties hereto;
(ii) the delivery by the Seller to the Buyer of
certification that all necessary corporate action has been taken
by the Seller to approve this Amendment and the sale of
Receivables by the Seller under the Agreement as amended hereby
(including without limitation, a certificate setting forth the
resolutions of the Seller adopted in respect of the transaction
contemplated hereby); and
(iii) the Buyer shall have received a favorable written
opinion of Neil Koonce, General Counsel of the Seller, dated the
date hereof and covering the matters set forth in paragraphs
1,2,3,4 and 5 of the opinion of Schell Bray Aycock Abel &
Livingston delivered pursuant to Section 3.02(j) of the
Receivables Purchase Agreement.
ARTICLE V. Governing Law.
This Amendment shall be governed by and construed in accordance
with the laws of the State of New York.
ARTICLE VI. Counterparts.
This Amendment may be executed in any number of counterparts, all
of which taken together shall constitute one agreement, and any of the
parties hereto may execute this Amendment by signing such counterpart.
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IN WITNESS WHEREOF, each of the parties hereto have caused a
counterpart of this Amendment to be duly executed as of the date first
above written.
DELAWARE FUNDING CORPORATION
by: J.P. Morgan Delaware,
as attorney-in-fact
for Delaware Funding
Corporation
by:____________________________
Authorized Signatory
____________________________
Title
CONE MILLS CORPORATION
by:____________________________
Authorized Signatory
____________________________
Title