Exhibit 10.39
SIXTH AMENDMENT TO SECURITIZATION AGREEMENTS
THIS SIXTH AMENDMENT TO SECURITIZATION AGREEMENTS (this
"Amendment"), is made and entered into as of December 17, 2001
(the "Effective Date"), by and between CONSOLIDATED FREIGHTWAYS
FUNDING LLC, a Delaware limited liability company (the
"Borrower"), CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, a
Delaware corporation ("CFCD"; the Borrower and CFCD are referred
to herein individually as a "Company" and collectively as the
"Companies"), and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation ("GE Capital"), in its capacities (i) as
Conduit Lender (in such capacity, the "Conduit Lender"), (ii) as
Committed Lender (in such capacity, the "Committed Lender"; in
its dual capacities as Conduit Lender and Committed Lender, GE
Capital is herein referred to as "Lender"), and (iii) as
Administrative Agent for the Lender (in such capacity, the
"Administrative Agent").
W I T N E S E T H:
WHEREAS, CFCD and the Borrower are parties to a certain
Receivables Sale and Contribution Agreement, dated as of April
27, 2001 (as amended to the date hereof, the "Sale Agreement";
capitalized terms used herein and not otherwise defined herein
shall have the meanings given such terms in Annex X to the Sale
Agreement as amended by this Amendment), whereby CFCD has agreed
to sell, contribute or otherwise transfer to the Borrower, and
the Borrower has agreed to purchase or otherwise acquire from
CFCD, all of the right, title and interest of CFCD in the
Receivables; and
WHEREAS, CFCD, the Borrower, the Lender and the
Administrative Agent, are parties to a certain Servicing
Agreement, dated as of April 27, 2001 (as amended to the date
hereof, the "Servicing Agreement"), whereby the Borrower has
appointed CFCD to service, administer and collect the Transferred
Receivables pursuant to the Funding Agreement (defined below) on
the terms and conditions set forth therein; and
WHEREAS, the Borrower, the Lender and the Administrative
Agent are parties to a certain Receivables Funding Agreement,
dated as of April 27, 2001 (as amended to the date hereof, the
"Funding Agreement") (the Sale Agreement, the Servicing Agreement
and the Funding Agreement, together with all exhibits and annexes
thereto, are referred to herein collectively as the
"Securitization Agreements"), pursuant to which, among other
things, the Lender has agreed, subject to certain terms and
conditions, to make Advances to the Borrower to fund its
purchases of the Receivables; and
WHEREAS, the Companies have requested that the
Securitization Agreements be amended in certain respects, and GE
Capital (in its various capacities) is 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 to effectiveness
specified in Section 6 below, the parties signatory to each of
the Funding Agreement, the Sale Agreement and the Servicing
Agreement hereby agree to amend the Securitization Agreements as
follows:
(A) Amendments to Annex X. The parties signatory to
each of the Funding Agreement, the Sale Agreement, and the
Servicing Agreement hereby agree to amend Annex X to the
Funding Agreement, the Sale Agreement and the Servicing
Agreement as follows:
1.1 The definition of the term "Defaulted Receivable"
set forth in Annex X is amended by adding the following new
sentence to the end of the definition thereof to read in its
entirety as follows:
Notwithstanding the foregoing, Defaulted Receivable
shall not include any Transferred Receivable with
respect to which GE Capital or any affiliate thereof is
the Obligor.
1.2 The definition of the term "In Transit Reserve"
set forth in Annex X is hereby deleted in its entirety and
the following amended definition of such term is substituted
in lieu thereof:
"In Transit Reserve" shall mean, as at any
date of determination thereof, the aggregate
Outstanding Balance as of such date of all Eligible
Receivables with respect to which (i) any services
remain to be performed by or on behalf of the
Originator as a condition to the payment thereof, or
(ii) acceptance by or any other act of the Obligor
thereunder remains to be performed as a condition to
the payment thereof, provided that the In Transit
Reserve shall not include the Outstanding Balance of
any Eligible Receivable to the extent that such
Eligible Receivable arises out of the transportation of
goods or merchandise by the Originator to or for the
benefit of an Obligor and (i) such goods or merchandise
have been delivered to such Obligor or to a destination
specified by such Obligor or (ii) such goods or
merchandise have been delivered to Originator's final
destination terminal but have not yet been delivered to
or received by the Obligor because the Obligor has
requested that the delivery date for such goods or
merchandise be delayed to a future date.
2. No Other Amendments. Except for the amendments 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 the Lender and the Administrative
Agent that (a) this Amendment has been duly authorized, executed
and delivered by such Company, (b) after giving effect to this
Amendment, no Termination Event, Incipient Termination Event,
Event of Servicer Termination or Incipient Servicer Termination
Event in respect of such Company has occurred and is continuing
as of this date, and (c) after giving effect to this Amendment,
all of the representations and warranties made by such 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. Any Advances made on the Effective
Date shall be deemed to have been requested and funded after
giving effect to this Amendment.
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. Estoppel. To induce GE Capital (in its various capacities)
to enter into this Amendment, each Company hereby acknowledges
and agrees that, as of the date hereof, there exists no right of
offset, defense or counterclaim in favor of any Company as
against GE Capital (in its various capacities) with respect to
the obligations of any Company to GE Capital (in its various
capacities) under the Securitization Agreements or the other
Related Documents, either with or without giving effect to this
Amendment.
6. Conditions to Effectiveness. This Amendment shall become
effective, as of the Effective Date, upon receipt by the
Administrative Agent of (i) this Amendment, duly executed,
completed and delivered by each of the Companies and by GE
Capital in its various capacities and (ii) the Fee Letter dated
of even date herewith between the Administrative Agent and
Borrower, duly executed by Borrower.
7. Reimbursement of Expenses. Each Company hereby agrees that
it shall reimburse the Administrative Agent on demand for all
costs and expenses (including without limitation reasonable
attorney's fees) incurred by the Administrative Agent 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 AGREEMENT 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
by this Amendment embody the entire agreement between the parties
hereto relating to the subject matter hereof and supersedes all
prior agreements, representations and understandings, if any,
relating to the subject matter hereof.
12. Originators' and GE Capital's Capacities. CFCD is executing
and delivering this Amendment both in its capacity as an
Originator under the Sale Agreement and as a Servicer under the
Servicing Agreement, and all references herein to "CFCD" shall be
deemed to include CFCD in both such capacities unless otherwise
expressly indicated. GE Capital is executing and delivering this
Amendment in its various capacities as Lender and the
Administrative Agent, and all references herein to "GE Capital"
shall be deemed to include it in all such capacities unless
otherwise expressly indicated.
IN WITNESS WHEREOF, the parties have caused this Sixth
Amendment to Securitization Agreements be duly executed by their
respective officers thereunto duly authorized, as of the date
first above written.
CONSOLIDATED FREIGHTWAYS FUNDING LLC, as
Borrower
By/s/Robert E. Wrightson
Name:Robert E. Wrightson
Title:Executive Vice President and
Chief Financial Officer
CONSOLIDATED FREIGHTWAYS CORPORATION OF
DELAWARE, as Originator and Servicer
By/s/Robert E. Wrightson
Name:Robert E. Wrightson
Title:Executive Vice President and
Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION,
as Conduit Lender, Committed Lender and
Administrative Agent
By/s/Craig Winslow
Name:Craig Winslow
Title: Duly Authorized Signatory