Exhibit 4.3.12
AMENDMENT NO. 12 TO CREDIT AGREEMENT AND
AMENDMENT TO EQUITY APPRECIATION RIGHTS AGREEMENT
THIS AMENDMENT NO. 12 TO CREDIT AGREEMENT AND AMENDMENT TO EQUITY
APPRECIATION RIGHTS AGREEMENT (this "Agreement") is made and entered into as of
this 27th day of May, 2003, by and among CONE ▇▇▇▇▇ CORPORATION, a North
Carolina corporation (the "Borrower"), each of the Lenders signatory hereto and
BANK OF AMERICA, N.A., a national banking association, as Agent (the "Agent")
for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders from time to time party
thereto (the Lenders") have entered into that certain Credit Agreement dated as
of January 28, 2000, as amended by Amendment No. 1 to Credit Agreement dated as
of July 14, 2000 ("Amendment No. 1"), Amendment No. 2 to Credit Agreement dated
as of December 12, 2000 ("Amendment No. 2"), Waiver and Amendment No. 3 to
Credit Agreement dated as of April 23, 2001 ("Amendment No. 3"), Amendment No. 4
to Credit Agreement dated as of June 28, 2001 ("Amendment No. 4"), Amendment No.
5 to Credit Agreement dated as of August 10, 2001 ("Amendment No. 5"), Amendment
No. 6 to Credit Agreement dated as of September 25, 2001 ("Amendment No. 6"),
Amendment No. 7 to Credit Agreement dated as of October 25, 2001 ("Amendment No.
7"), Amendment No. 8 to Credit Agreement dated as of November 9, 2001
("Amendment No. 8"), Amendment No. 9 to Credit Agreement dated as of February
27, 2002 ("Amendment No. 9"), Amendment No. 10 to Credit Agreement dated as of
December 2, 2002 ("Amendment No. 10"), and Amendment No. 11 to Credit Agreement
dated as of April 30, 2003 ("Amendment No. 11" and, together with Amendment ▇▇.
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▇▇. ▇, Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇ and Amendment No. 10,
the "Prior Amendments"; such Credit Agreement as heretofore amended, the
"Existing Credit Agreement"); and
WHEREAS, the Borrower, the Agent and the Lenders parties thereto have
entered into that certain Equity Appreciation Rights Agreement dated as of
November 9, 2001 (the "Existing Equity Appreciation Rights Agreement");
WHEREAS, the Borrower has requested the Agent and the Lenders to amend the
terms of the Existing Credit Agreement and the Existing Equity Appreciation
Rights Agreement as set forth herein, and the Agent and the Lenders are
agreeable to such amendments;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions herein set forth, it is hereby agreed as follows:
1. Definitions. The term "Credit Agreement" as used herein and in the other
Loan Documents shall mean the Existing Credit Agreement as previously amended
and as hereby amended and as from time to time further amended, modified,
supplemented or restated. The term "Equity Appreciation Rights Agreement" as
used herein and in the other Loan Documents shall mean the Existing Equity
Appreciation Rights Agreement as previously amended and as hereby amended and as
from time to time further amended, modified, supplemented or restated.
Unless the context otherwise requires, all capitalized terms used herein without
definition shall have the respective meanings provided therefor in the Credit
Agreement.
2. Amendments to Credit Agreement. The Existing Credit Agreement is hereby
amended as follows, effective as of the date hereof:
(a) The following definition of "Amendment No. 12" is added to Section
1.1 the Credit Agreement, in the appropriate alphabetical order:
" `Amendment No. 12' means that certain Amendment No. 12 to
Credit Agreement and Amendment to Equity Appreciation Rights Agreement
dated as of May 27th, 2003, among the Borrower, the Lenders parties
thereto, and the Agent.
(b) The following two sentences are deleted from the definition of
"Applicable Margin" in Section 1.1 of the Credit Agreement:
"Pursuant to Section 4.11, all Loans shall be Base Rate Loans on
and after the Eighth Amendment Closing Date. The Eurodollar Rate or
its Applicable Margin may apply, however, in the calculation of
certain fees, including without limitation the fee on outstanding
Letters of Credit as set forth in Section 4.6."
(c) The definition of "Consolidated EBITDA" in Section 1.1 of the
Credit Agreement is amended in its entirety, so that as amended it shall
read as follows"
" `Consolidated EBITDA' means, with respect to the Borrower and
its Subsidiaries for any period ending on the date of computation
thereof, the sum of, without duplication, (i) Consolidated Net Income,
(ii) Consolidated Interest Expense, (iii) taxes on income, (iv)
amortization, (v) depreciation, (vi) any charges (in an aggregate
amount not to exceed $4,117,131.95) otherwise deducted in calculating
Consolidated Net Income which charges arise from the payment of the
Initial Termination Payment and the Senior Note Initial Termination
Payment and the issuance of the EARS Notes, the Senior Note EARS Note
and the EARS Stock, and (vii) non-cash charges otherwise deducted in
calculating Consolidated Net Income resulting from FASB No. 88
Adjustments, FASB No. 106 Adjustments, FASB No. 112 Adjustments, FASB
No. 121 Adjustments or FASB No. 144 Adjustments (in each case, without
duplication), all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis."
(d) The definitions of "Convert", "Conversion" and "Converted" are
amended in their entirety, so that as amended they shall read as follows:
" `Convert,' `Conversion,' and `Converted' shall refer to (a) a
conversion pursuant to Section 4.2 of one Type of Loan into another
Type of Loan, or (b) a conversion pursuant to Section 4.11 of any Type
of Loan into a Fixed Rate Loan."
(e) The definition of "Default Rate" in Section 1.1 of the Credit
Agreement is amended in its entirety, so that as amended it shall read as
follows:
" `Default Rate' means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Fixed Rate
Loans, a rate of interest per annum which shall be two percent (2%)
above the Fixed Rate, (iii) with respect to Base Rate Loans,
Reimbursement Obligations, fees, and other amounts payable in respect
of Obligations or (except as otherwise expressly provided therein) the
obligations of any other Credit Party under any of the other Loan
Documents, a rate of interest per annum which shall be two percent
(2%) above the Base Rate and (iv) in any case, the maximum rate
permitted by applicable law, if lower."
(f) The following definition of "EARS Notes" is added to Section 1.1
of the Credit Agreement, in the appropriate alphabetical order:
" `EARS Notes' means, collectively, the promissory notes of the
Borrower evidencing amounts owed to certain Lenders pursuant to the
Equity Appreciation Rights Agreement, which notes are executed and
delivered to such Lenders as provided in Section 2.06 of the Equity
Appreciation Right Agreement in substantially the form of Schedule I
to the Equity Appreciation Rights Agreement, with appropriate inserts
as to amounts and names of Lenders."
(g) The following definition of "EARS Stock" is added to Section 1.1
of the Credit Agreement, in the appropriate alphabetical order:
" `EARS Stock' means the capital stock of the Borrower issued to
certain Lenders or their respective nominees pursuant to Section
2.06(b) of the Equity Appreciation Rights Agreement."
(h) The following definition of "FASB No. 144 Adjustments" is added to
Section 1.1 of the Credit Agreement, in the appropriate alphabetical order:
" `FASB No. 144 Adjustments' means adjustments charged to income
(or loss) resulting from impairment of long-lived assets (as defined
in the Statement of Financial Accounting Standards No. 144)."
(i) The following definitions of "Fixed Rate", "Fixed Rate Loan" and
"Fixed Rate Outstandings" are added to Section 1.1 of the Credit Agreement
in the appropriate alphabetical order:
" `Fixed Rate' means a rate of twelve percent (12%) per annum."
" `Fixed Rate Loan' means a Loan for which the rate of interest
is determined by reference to the Fixed Rate."
" `Fixed Rate Outstandings' means, as of any date, the aggregate
principal amount of all Fixed Rate Loans then outstanding."
(j) The following definition of "Initial Termination Payment" is added
to Section 1.1 of the Credit Agreement, in the appropriate alphabetical
order:
" `Initial Termination Payment' has the meaning assigned to such
term in the Equity Appreciation Rights Agreement."
(k) The definition of "Interest Period" in Section 1.1 of the Credit
Agreement is amended by deleting the phrase "ending, at the Borrower's
option, on the date one, two or three months thereafter" and inserting in
its place the phrase "ending on the date one month thereafter".
(l) The definition of "Loan Documents" in Section 1.1 of the Credit
Agreement is amended by adding the phrase "the EARS Notes," immediately
after the phrase "the Equity Appreciation Rights Agreement".
(m) The following definition of "Minimum Fixed Rate Amount" is added
to Section 1.1 of the Credit Agreement in the appropriate alphabetical
order:
" `Minimum Fixed Rate Amount' means, as of any date of
determination thereof, the lesser of (a) $25,000,000 and (b) the total
Revolving Credit Outstandings.
(n) The definition of "Revolving Credit Outstandings" in Section 1.1
of the Credit Agreement is amended by deleting the phrase "Determination
Date" and inserting in its place the word "date".
(o) The following definition of "Senior Note Initial Termination
Payment" is added to Section 1.1 of the Credit Agreement, in the
appropriate alphabetical order:
" `Senior Note Initial Termination Payment' means the `Initial
Termination Payment' (as defined in the Senior Note Equity
Appreciation Rights Agreement)."
(p) The following definition of "Senior Note EARS Note" is added to
Section 1.1 of the Credit Agreement, in the appropriate alphabetical order:
" `Senior Note EARS Note' means the `EARS Note' (as defined in
the Senior Note Equity Appreciation Rights Agreement)."
(q) The definition of "Senior Notes" in Section 1.1 of the Credit
Agreement is amended by deleting "[13.70%]" and inserting in its place
"14.20%".
(r) The definition of "Stated Termination Date" in Section 1.1 of the
Credit Agreement is amended in its entirety, so that as amended it shall
read as follows:
" `Stated Termination Date' means March 15, 2004."
(s) The following definition of "Twelfth Amendment Closing Date" is
added to Section 1.1 of the Credit Agreement, in the appropriate
alphabetical order:
" `Twelfth Amendment Closing Date' means May __, 2003."
(t) Section 2.1(g) of the Credit Agreement is amended by inserting the
following sentences immediately after the chart in such Section and
immediately before the last sentence of such Section:
"In addition, the principal amount of outstanding Revolving Loans
and Letter of Credit Outstandings shall be prepaid monthly (on the
first Business Day of each month, commencing July 1, 2003), in an
amount equal to $583,333.33 per month. Each such prepayment shall be
accompanied by the payment of all amounts required to be paid pursuant
to Section 6.5 and accrued and unpaid interest on the amounts
prepaid."
(u) Section 4.3 of the Credit Agreement is amended in its entirety, so
that as amended it shall read as follows:
"4.3 Payment of Interest. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Revolving Loan,
commencing on the first date of such Revolving Loan until such
Revolving Loan shall be repaid at the applicable Base Rate or
Eurodollar Rate as designated by the Borrower in the related Borrowing
Notice or Interest Rate Selection Notice or as otherwise provided
hereunder, or at the Fixed Rate to the extent required hereunder.
Interest on each Revolving Loan shall be paid on the earlier of (a) in
the case of any Base Rate Loan, quarterly in arrears on the last
Business Day of each March, June, September and December, commencing
on March 31, 2000, until the Eighth Amendment Closing Date, and then
monthly in arrears on the last Business Day of each month commencing
November 30, 2001, until the Revolving Credit Termination Date, at
which date as applicable the entire principal amount of and all
accrued interest on the Revolving Loans shall be paid in full, (b) in
the case of any Eurodollar Rate Loan, on the last day of the
applicable Interest Period for such Eurodollar Rate Loan and if such
Interest Period extends for more than three (3) months, at intervals
of three (3) months after the first day of such Interest Period, (c)
in the case of any Fixed Rate Loan, monthly in arrears on the last
Business Day of each month, and (d) upon payment in full of the
Revolving Loan; provided, however, that if any Event of Default shall
occur and be continuing, all amounts outstanding hereunder shall bear
interest thereafter until paid in full at the Default Rate.
(v) Section 4.11 is of the Credit Agreement is amended in its
entirety, so that as amended, it shall read as follows:
4.11 Fixed Rate Loans. Notwithstanding any provision in this
Agreement to the contrary, at all times on and after the Twelfth
Amendment Closing Date, the amount of Fixed Rate Outstandings shall
not be less than the Minimum Fixed Rate Amount. If at any time the
amount of Fixed Rate Outstandings is less than the Minimum Fixed Rate
Amount, then (a) outstanding Base Rate Loans shall be immediately and
automatically Converted into Fixed Rate Loans (without any further
action on the part of the Borrower or any other Person) until (i) the
amount of Fixed Rate Loans is equal to the Minimum Fixed Rate Amount
or (ii) all Base Rate Loans have been so Converted (whichever comes
first); and (b) if, after the Conversion of all Base Rate Loans to
Fixed Rate Loans, the amount of Fixed Rate Outstandings is still less
than the Minimum Fixed Rate Amount, then outstanding Eurodollar Rate
Loans shall be immediately and automatically Converted to Fixed Rate
Loans (without any further action of the part of the Borrower or any
other Person) until the amount of Fixed Rate Loans is equal to the
Minimum Fixed Rate Amount; and the Borrower shall pay any amounts
required by Section 6.5. The Borrower may not Convert any Fixed Rate
Loan to any other Type of Loan. All prepayments of Revolving Credit
Outstandings shall be applied to Revolving Loans other than Fixed Rate
Loans unless and until the only outstanding Revolving Loans are Fixed
Rate Loans, at which point such prepayments shall be applied to the
outstanding Fixed Rate Loans. At any time that Fixed Rate Outstandings
are less than $25,000,000, any new Advances of Revolving Loans shall
automatically be deemed to be Fixed Rate Loans until the amount of
Fixed Rate Outstandings is equal to $25,000,000.
(w) Section 10.1 of the Credit Agreement is amended in its entirety,
so that as amended it shall read as follows:
"10.1 Financial Covenants.
"(a) Consolidated Net Worth. Permit as of each date set
forth below Consolidated Net Worth to be less than the amount set
forth opposite each such date:
Date Consolidated Net
Worth Must Exceed
--------------------- -----------------
June 29, 2003 $81,500,000
September 28, 2003 $81,500,000
December 28, 2003 $81,500,000
"(b) Intentionally left blank.
"(c) Consolidated Interest Coverage Ratio. Permit as of the
end of each Four-Quarter Period set forth below the Consolidated
Interest Coverage Ratio to be less than that set forth opposite
each such period:
Consolidated Interest
"Four-Quarter Period Ending Coverage Ratio Must Exceed
--------------------------- --------------------------
June 29, 2003 2.30 to 1.00
September 28, 2003 2.00 to 1.00
December 28, 2003 1.95 to 1.00
"(d) Consolidated EBITDA. Permit as of the end of each
Four-Quarter Period set forth below Consolidated EBITDA to be
less than that set forth opposite each such period:
Consolidated EBITDA
"Four-Quarter Period Ending Must Exceed
--------------------------- -------------------
June 29, 2003 $40,000,000
September 28, 2003 $38,000,000
December 28, 2003 $35,500,000"
(x) Exhibit D to the Credit Agreement is replaced in its entirety by
Exhibit D attached hereto.
(y) Exhibit E to the Credit Agreement is replaced in its entirety by
Exhibit E attached hereto.
(z) Exhibit Q to the Credit Agreement is replaced in its entirety by
Exhibit Q attached hereto.
3. Amendments to Equity Appreciation Rights Agreement. The Existing Equity
Appreciation Rights Agreement is hereby amended as follows, effective as of the
date hereof:
(a) The following Sections 2.06, 2.07 and 2.08 are added to the end of
Article II of the Equity Appreciation Rights Agreement:
"Section 2.06 Termination of Option; Termination Payments and
EARS Notes. Notwithstanding any provision in this Agreement to the
contrary, the rights of the Agent and the Lenders to receive any
Rights Fee pursuant to Sections 2.01 through 2.05 shall terminate on
May __, 2003 (the "Termination Date"). In consideration of the
termination of such rights, the Borrower shall:
(a) on the Termination Date, pay to the Agent (for the
benefit of the Lenders) an initial termination payment (the
"Initial Termination Payment") in the amount of $1,440,996.18;
(b) on the Termination Date, issue and deliver to each of
JPMorgan Chase Bank and SunTrust Bank (collectively, the "Stock
Recipients"), or to the respective nominee of any such Stock
Recipient, the respective number of shares of the capital stock
of the Borrower as set forth in Schedule III hereto; and
(c) on the Termination Date, execute and deliver to each of
Bank of America Strategic Solutions, Inc. and WLR Recovery Fund
II, LP (collectively, with their respective successors and
assigns, the "EARS Noteholders") a promissory note in
substantially the form of Schedule I hereto (with appropriate
insertions of amounts and names of Lenders) (collectively, the
"EARS Notes") evidencing the obligation of the Borrower to pay
each such EARS Noteholder the respective principal amount set
forth in Schedule II hereto, at such times and with such interest
as set forth in the respective EARS Note; and
(d) pay to each EARS Noteholders principal and interest in
accordance with the terms of its respective EARS Note.
"Section 2.07 Sharing of Initial Termination Payment. The Initial
Termination Fee paid to the Agent shall be paid by the Agent to the
Lenders in the manner described in Section 4.7 of the Credit
Agreement.
"Section 2.08 Adjustments. If any EARS Noteholder (a "benefited
Noteholder") shall at any time receive any payment of all or part of
the EARS Note owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, or otherwise), in a greater proportion than any such
payment to or collateral received by any other EARS Noteholder, if
any, in respect of such other EARS Noteholder's EARS Note owing to it,
or interest thereon, such benefited Noteholder shall purchase for cash
from the other EARS Noteholders a participating interest in such
portion of each such other EARS Noteholders EARS Note owing to it, or
shall provide such other EARS Noteholders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to
cause such benefited Noteholder to share the excess payment or
benefits of such collateral or proceeds ratably with each of the EARS
Noteholders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefited
Noteholder, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that any EARS Noteholder so purchasing a
participation from an EARS Noteholder pursuant to this Section 2.08
may, to the fullest extent permitted by law, exercise all of its
rights of payment (including the right of set-off) with respect to
such participation as fully as if such Person were the direct creditor
of the Borrower in the amount of such participation.
4. Equity Appreciation Rights Agreement and EARS Notes. The Borrower and
each of the Guarantors hereby acknowledges and agrees that the obligations,
liabilities and indebtedness of the Borrower arising from the Equity
Appreciation Rights Agreement and the EARS Notes are Senior Revolving Credit
Obligations as defined by the Intercreditor Agreement.
5. Guarantors. Each of the Guarantors has joined into the execution of this
Agreement for the purpose of consenting to the amendments contained herein,
agreeing to the terms of Section 4 hereof, and reaffirming its guaranty of the
Obligations as amended by the terms of this Agreement.
6. Borrower's Representations and Warranties. The Borrower hereby
represents, warrants and certifies that:
(a) The representations and warranties made by it in Article VIII of
the Credit Agreement are true on and as of the date hereof before and after
giving effect to this Agreement except that the financial statements
referred to in Section 8.6(a) shall be those most recently furnished to
each Lender pursuant to Section 9.1(a) and (b) of the Credit Agreement;
(b) The Borrower has the power and authority to execute and perform
this Agreement and has taken all action required for the lawful execution,
delivery and performance thereof;
(c) Except as has been disclosed to the Agent and the Lenders in
writing, there has been no material adverse change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries, taken as a
whole, since the date of the most recent financial reports of the Borrower
received by each Lender under Section 9.1(a) of the Credit Agreement after
giving effect to the transactions contemplated by this Agreement;
(d) The business and properties of the Borrower and its Subsidiaries
are not, and since the date of the most recent financial report of the
Borrower and its Subsidiaries received by the Agent under Section 9.1(a) of
the Credit Agreement have not been, adversely affected in any substantial
way as the result of any fire, explosion, earthquake, accident, strike,
lockout, combination of workmen, flood, embargo, riot, activities of armed
forces, war or acts of God or the public enemy, or cancellation or loss of
any major contracts; and
(e) No Default or Event of Default has occurred and is continuing.
7. Entire Agreement. This Agreement sets forth the entire understanding and
agreement of the parties hereto in relation to the subject matter hereof and
supersedes any prior negotiations and agreements among the parties relative to
such subject matter. None of the terms or conditions of this Agreement may be
changed, modified, waived or canceled orally or otherwise, except as provided in
the Credit Agreement.
8. Full Force and Effect of Amendment. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are
hereby confirmed and ratified in all respects and shall remain in full force and
effect according to their respective terms.
9. Counterparts. This Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
10. Enforceability. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable as to one or more of the
parties hereto, all other provisions nevertheless shall remain effective and
binding on the parties hereto.
11. Amendment Fees. Concurrently with the closing of this Amendment, the
Borrower will pay to the Agent (for the benefit of each Lender) an amendment fee
(each, an "Amendment Fee") in an amount equal to (a) 0.50 percent (0.50%)
multiplied by (b) the Revolving Credit Commitment of such Lender as of the date
of such closing after giving effect to this Amendment. Such Amendment Fees shall
be fully-earned upon becoming due and payable, shall be non-refundable for any
reason whatsoever and shall be in addition to any other fee, cost or expense
payable pursuant to the Credit Agreement, any other Loan Document or any other
agreement.
12. Conditions. The effectiveness of this Agreement shall be subject to
fulfillment of the following conditions:
(a) The Agent shall have received on or before the date hereof, in
each case in form and substance satisfactory to the Agent, the following:
(i) a fully-executed original of this Agreement;
(ii) a fully-executed original of an amendment to the Senior Debt
Intercreditor Agreement;
(iii) payment by the Borrower to the Agent of all fees required
to be paid hereunder or otherwise due and payable to the Agent or the
Lenders at or prior the closing date, including without limitation all
Amendment Fees and the fees and expenses of special counsel to the
Agent to the extent invoiced prior to or on the closing date, plus
such additional amounts as shall constitute its reasonable estimate of
fees and expenses incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude
a final settling of accounts between the Borrower and the Agent);
(iv) payment by the Borrower to the Agent of the Initial
Termination Payment (as defined in Section 3(a) of this Amendment);
(v) the executed original of each EARS Note (as defined in
Section 3(a) of this Amendment) for further delivery by the Agent to
the respective EARS Noteholder (as so defined);
(vi) the opinion of in-house counsel to the Borrower and the
Guarantors containing such opinions and in form and substance as shall
be reasonably acceptable to the Agent and its special counsel;
(vii) the acknowledgment of General Electric Capital Corporation
under the Receivables Purchase Agreement;
(viii) a fully-executed amendment to the Senior Note Agreement,
in full force and effect, extending to March 15, 2004 the prepayment
of Senior Note Obligations that had previously been scheduled for June
27, 2003 pursuant to Section 4A of the Senior Note Agreement; and
(ix) a certificate or certificates of the Borrower signed by its
chief financial officer or chief operating officer, dated the date
hereof and certifying:
(A) that except as previously disclosed to the Agent and
Lenders, there has not occurred a material adverse change since
December 29, 2002 in the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole
or in the facts and information regarding such entities as
represented to the Agent and Lenders;
(B) that there is no action, suit, investigation or
proceeding pending or threatened in any court or before any
arbitrator or governmental authority that purports (1) to
materially and adversely affect the Borrower or its Subsidiaries
taken as a whole, or (2) to affect any transaction contemplated
by the Credit Agreement (as amended hereby) or the ability of the
Borrower and its Subsidiaries or any other obligor under the
Facility Guaranties or Security Documents to perform their
respective obligations under the Credit Agreement and other Loan
Documents;
(C) that no Default or Event of Default has occurred and is
continuing; and
(D) as to such other matters as the Agent may request;
(b) Each Stock Recipient (as defined in Section 3(a) of this
Agreement) or its nominee shall have received, within one (1) Business Day
after the date hereof, the respective number of shares of capital stock of
the Borrower described in Schedule III to this Amendment; and
(c) The correctness in all respects on the date hereof of the
representations and warranties of the Borrower contained herein.
(13) Release. Each of the Borrower and each Guarantor acknowledges that it
has no existing defense, counterclaim, offset, cross-complaint, claim or demand
of any kind or nature whatsoever that can be asserted to reduce or eliminate all
or any part of its liability to pay the full indebtedness outstanding under the
terms of the Credit Agreement, this Agreement, the Notes,
the Facility Guaranty, and the other Loan Documents. In consideration for the
execution of this Agreement, each of the Borrower and each Guarantor hereby
releases and forever discharges the Agent, the Lenders, their respective
affiliates, predecessors, successors and assignees, and all of the respective
officers, directors, employees and agents of the Agent, the Lenders and such
affiliates, predecessors, successors and assignees (collectively, the "Released
Parties") from any and all actions, causes of action, debts, dues, claims,
demands, liabilities and obligations of every kind and nature, both in law and
in equity, from the beginning of the world to the date hereof, known or unknown,
now existing, which might be asserted against the Agent, any Lender or any other
Released Party. This release applies to all matters arising out of or relating
to the Loan Documents, the indebtedness due under the Notes, the Credit
Agreement, this Agreement or any other Loan Document, and the lending, deposit,
borrowing and other banking relationships between the Borrower or any Guarantor
and the Agent, any Lender or any other Released Party, including the
administration, collateralization and funding thereof.
[Signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
BORROWER:
CONE ▇▇▇▇▇ CORPORATION
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
GUARANTORS:
CIPCO S.C., INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst Secretary
CONE FOREIGN TRADING LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
AGENT:
BANK OF AMERICA, N.A. as Agent for the Lenders
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
LENDERS:
BANK OF AMERICA STRATEGIC SOLUTIONS, INC.
By: /s/ ▇▇▇▇ ▇. Register
Name: ▇▇▇▇ ▇. Register
Title: Principal
WLR RECOVERY FUND II, LP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. Vice President
SUNTRUST BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Directoro
JPMORGAN CHASE BANK formerly known as
the Chase Manhattan Bank successor by merger to
▇▇▇▇▇▇ Guaranty Trust Company of New York
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
EXHIBIT D
Form of Borrowing Notice
To: Bank of America, N.A.,
as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of January 28,
2000 (the "Agreement") among Cone ▇▇▇▇▇ Corporation, a North Carolina
corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
Bank of America, N.A., as Agent for the Lenders ("Agent"). Capitalized terms
used but not defined herein shall have the respective meanings therefor set
forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice to
the Agent that Loans of the type and amount set forth below be made on the date
indicated:
Type of Loan Interest Period(1) Aggregate Amount(2) Date of Loan(3)
(check one)
-------------- ------------------ ------------------- ---------------
Revolving Loan
--------------
Base Rate Loan ------------ ---------------- -----------
Eurodollar Rate Loan(4) ------------ ---------------- -----------
-----------------------
(1) For any Eurodollar Rate Loan, one month.
(2) Must be $1,000,000 or if greater an integral multiple of $1,000,000, unless
a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
(4) Any Base Rate Loans or Eurodollar Rate Loans may be automatically Converted
to Fixed Rate Loans pursuant to the Credit Agreement.
The Borrower hereby requests that the proceeds of Loans described in this
Borrowing Notice be made available to the Borrower as follows: [insert
transmittal instructions] .
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving effect
to the borrowing described herein; and
2. All the representations and warranties set forth in Article VIII of the
Agreement and in the Loan Documents (other than those expressly stated to refer
to a particular date) are true and correct as of the date hereof except that the
reference to the financial statements in Section 8.6(a) of the Agreement shall
be deemed (solely for the purpose of the representation and warranty contained
in such Section 8.6(a) but not for the purpose of any cross reference to such
Section 8.6(a) or to the financial statements described therein contained in any
other provision of Section 8.6 or elsewhere in Article 8) to refer to those
financial statements most recently delivered to you pursuant to Section 9.1 of
the Agreement (it being understood that any financial statements delivered
pursuant to Section 9.1(b) have not been certified by independent public
accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
CONE ▇▇▇▇▇ CORPORATION
BY:
-------------------------------------------
Authorized Representative
DATE:
-----------------------------------------
EXHIBIT E
Form of Interest Rate Selection Notice
To: Bank of America, N.A.,
as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of January 28,
2000 (the "Agreement") among Cone ▇▇▇▇▇ Corporation, a North Carolina
corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
Bank of America, N.A., as Agent for the Lenders ("Agent"). Capitalized terms
used but not defined herein shall have the respective meanings therefor set
forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice to
the Agent of the following selection of a type of Loan and Interest Period:
Type of Loan Interest Period(1) Aggregate Amount(2) Date of Loan(3)
(check one)
-------------- ------------------ ------------------- ---------------
Revolving Loan
--------------
Base Rate Loan ------------ ---------------- -----------
Eurodollar Rate Loan(4) ------------ ---------------- -----------
-----------------------
(1) For any Eurodollar Rate Loan, one month.
(2) Must be $1,000,000 or if greater an integral multiple of $1,000,000, unless
a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
(4) Any Base Rate Loans or Eurodollar Rate Loans may be automatically Converted
to Fixed Rate Loans pursuant to the Credit Agreement.
CONE ▇▇▇▇▇ CORPORATION
BY:
------------------------------------------
Authorized Representative
DATE:
------------------------------------------
EXHIBIT Q
Projected EBIDTA, PBGC Payments and LIFO Adjustments
1. Two-Quarter
Period Ended Projected EBITDA
--------------------- -----------------
December 30, 2001 $12,410,000
June 30, 2002 $17,062,000
December 29, 2002 $24,706,000
June 29, 2003 $18,676,000
December 28, 2003 $20,754,000
2. Two-Quarter
Period Ended Projected PBGC Payments
--------------------- -----------------------
June 30, 2002 $1,200,000
3. Two-Quarter Projected Non-Cash
Period Ended LIFO Adjustments
--------------------- ------------------
December 30, 2001 $1,600,000
June 30, 2002 $0
December 29, 2002 negative $31,000
June 29, 2003 $0
December 28, 2003 $400,000
SCHEDULE I
Form of EARS Note
Promissory Note
$_______________________ Charlotte, North Carolina
May ___, 2003
FOR VALUE RECEIVED, CONE ▇▇▇▇▇ CORPORATION, a North Carolina corporation
having its principal place of business located in Greensboro, North Carolina
(the "Borrower"), hereby promises to pay to the order of
___________________________________ (the "Lender"), at its office located at
_______________________________________ (or at such other place or places as the
Lender may designate in writing), in lawful money of the United States of
America, in immediately available funds, the principal amount of ___________
____________________ DOLLARS ($______________), and to pay interest from the
date hereof at a rate of twelve percent (12%) on the unpaid principal amount
hereof, in like money, at said office. Interest shall be computed on the basis
of a year of 360 days and calculated for actual days elapsed.
The entire principal amount shall be due and payable on March 15, 2004.
The Borrower may prepay the principal amount in whole or in part from time
to time on any Business Day, without penalty, upon at least one (1) Business
Day's telephonic notice to the Lender.
Interest shall be paid monthly in arrears on the First Business Day of each
month, commencing June 2, 2003. In addition, any payment or prepayment of
principal shall be accompanied by the payment of all accrued and unpaid interest
on the amount paid or prepaid.
If an Event of Default has occurred and is continuing under the Credit
Agreement dated as of January 28, 2000, as amended, modified or supplemented
from time to time (the "Credit Agreement"), among the Borrower, Bank of America,
N.A., as agent ("the Agent"), and the lenders parties thereto from time to time,
the Lender may declare that all principal and accrued interest on this note is
immediately due and payable; provided, however, that notwithstanding the above,
if there shall occur an Event of Default under the Credit Agreement that causes
the Obligations (as defined in such agreement) to be immediately due and payable
without the necessity of any action by the Agent or Required Lenders under such
agreement, then all principal and interest on this note shall likewise be
immediately due and payable without the necessity of any action by the Lender.
In the event of a default in the payment of principal hereunder, such
principal amount shall thereafter bear interest at a rate of fourteen percent
(14%) per annum until paid. In addition, upon a default in any payment of
principal or interest, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
This note is one of the EARS Notes referred to in the Credit Agreement and
in the Equity Appreciation Rights Agreement dated as of November 9, 2001, as
amended, modified or supplemented from time to time (the "Equity Appreciation
Rights Agreement"), among the Borrower, the Agent and the Lenders parties
thereto. Capitalized terms not otherwise defined in this note shall have the
respective meanings assigned thereto in the Credit Agreement.
This note in entitled to the benefits and security of the Equity
Appreciation Rights Agreement and the other Loan Documents.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for the note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or ay other formality are hereby waived by all parties
bound hereon.
THE LAW OF THE STATE OF NORTH CAROLINA SHALL GOVERN THIS NOTE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
As provided in Section 3.04 of the Equity Appreciation Rights Agreement, the
Borrower irrevocably and unconditionally submits, for itself and its property,
to the jurisdiction of any North Carolina State court or Federal court of the
United States of America sitting in Charlotte, North Carolina, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this note or any related documents, or for recognition or enforcement of any
judgment.
[Signature page follows.]
IN WITNESS WHEREOF, the Borrower has caused this note to be made, executed
and delivered by its duly authorized representative as of the date and year
first above written, all pursuant to authority duly granted.
CONE ▇▇▇▇▇ CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
SCHEDULE II
EARS Noteholders and Principal Amounts
of their Respective EARS Notes
EARS Noteholder Principal Amount of EARS Note
--------------------- -----------------------------
Bank of America Strategic
Solutions, Inc. $450,311.31
WLR Recovery Fund II, LP $720,498.09
SCHEDULE III
Stock Recipients and Respective Amounts of Stock
Stock Recipient Number of Shares of
Cone ▇▇▇▇▇ Corporation Stock
--------------------- ----------------------------
JPMorgan Chase Bank 112,754 shares
SunTrust Bank 56,377 shares
Promissory Note
$450,311.31 Charlotte, North Carolina
May 27, 2003
FOR VALUE RECEIVED, CONE ▇▇▇▇▇ CORPORATION, a North Carolina corporation
having its principal place of business located in Greensboro, North Carolina
(the "Borrower"), hereby promises to pay to the order of Banc of America
Strategic Solutions, Inc. (the "Lender"), at its office located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other
place or places as the Lender may designate in writing), in lawful money of the
United States of America, in immediately available funds, the principal amount
of FOUR HUNDRED FIFTY THOUSAND THREE HUNDRED ELEVEN AND 31/100 DOLLARS
($450,311.31), and to pay interest from the date hereof at a rate of twelve
percent (12%) on the unpaid principal amount hereof, in like money, at said
office. Interest shall be computed on the basis of a year of 360 days and
calculated for actual days elapsed.
The entire principal amount shall be due and payable on March 15, 2004.
The Borrower may prepay the principal amount in whole or in part from time
to time on any Business Day, without penalty, upon at least one (1) Business
Day's telephonic notice to the Lender.
Interest shall be paid monthly in arrears on the First Business Day of each
month, commencing June 2, 2003. In addition, any payment or prepayment of
principal shall be accompanied by the payment of all accrued and unpaid interest
on the amount paid or prepaid.
If an Event of Default has occurred and is continuing under the Credit
Agreement dated as of January 28, 2000, as amended, modified or supplemented
from time to time (the "Credit Agreement"), among the Borrower, Bank of America,
N.A., as agent ("the Agent"), and the lenders parties thereto from time to time,
the Lender may declare that all principal and accrued interest on this note is
immediately due and payable; provided, however, that notwithstanding the above,
if there shall occur an Event of Default under the Credit Agreement that causes
the Obligations (as defined in such agreement) to be immediately due and payable
without the necessity of any action by the Agent or Required Lenders under such
agreement, then all principal and interest on this note shall likewise be
immediately due and payable without the necessity of any action by the Lender.
In the event of a default in the payment of principal hereunder, such
principal amount shall thereafter bear interest at a rate of fourteen percent
(14%) per annum until paid. In addition, upon a default in any payment of
principal or interest, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
This note is one of the EARS Notes referred to in the Credit Agreement and
in the Equity Appreciation Rights Agreement dated as of November 9, 2001, as
amended, modified or supplemented from time to time (the "Equity Appreciation
Rights Agreement"), among the Borrower, the Agent and the Lenders parties
thereto. Capitalized terms not otherwise defined in this note shall have the
respective meanings assigned thereto in the Credit Agreement.
This note in entitled to the benefits and security of the Equity
Appreciation Rights Agreement and the other Loan Documents.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for the note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or ay other formality are hereby waived by all parties
bound hereon.
THE LAW OF THE STATE OF NORTH CAROLINA SHALL GOVERN THIS NOTE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
As provided in Section 3.04 of the Equity Appreciation Rights Agreement, the
Borrower irrevocably and unconditionally submits, for itself and its property,
to the jurisdiction of any North Carolina State court or Federal court of the
United States of America sitting in Charlotte, North Carolina, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this note or any related documents, or for recognition or enforcement of any
judgment.
[Signature page follows.]
IN WITNESS WHEREOF, the Borrower has caused this note to be made, executed
and delivered by its duly authorized representative as of the date and year
first above written, all pursuant to authority duly granted.
CONE ▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Exec. Vice President & CFO
Promissory Note
$720,498.09 Charlotte, North Carolina
May 27, 2003
FOR VALUE RECEIVED, CONE ▇▇▇▇▇ CORPORATION, a North Carolina corporation
having its principal place of business located in Greensboro, North Carolina
(the "Borrower"), hereby promises to pay to the order of WLR Recovery Fund II,
LP (the "Lender"), at its office located at
_______________________________________ (or at such other place or places as the
Lender may designate in writing), in lawful money of the United States of
America, in immediately available funds, the principal amount of SEVEN HUNDRED
TWENTY THOUSAND FOUR HUNDRED NINETY-EIGHT AND 9/100 DOLLARS ($720,498.09), and
to pay interest from the date hereof at a rate of twelve percent (12%) on the
unpaid principal amount hereof, in like money, at said office. Interest shall be
computed on the basis of a year of 360 days and calculated for actual days
elapsed.
The entire principal amount shall be due and payable on March 15, 2004.
The Borrower may prepay the principal amount in whole or in part from time
to time on any Business Day, without penalty, upon at least one (1) Business
Day's telephonic notice to the Lender.
Interest shall be paid monthly in arrears on the First Business Day of each
month, commencing June 2, 2003. In addition, any payment or prepayment of
principal shall be accompanied by the payment of all accrued and unpaid interest
on the amount paid or prepaid.
If an Event of Default has occurred and is continuing under the Credit
Agreement dated as of January 28, 2000, as amended, modified or supplemented
from time to time (the "Credit Agreement"), among the Borrower, Bank of America,
N.A., as agent ("the Agent"), and the lenders parties thereto from time to time,
the Lender may declare that all principal and accrued interest on this note is
immediately due and payable; provided, however, that notwithstanding the above,
if there shall occur an Event of Default under the Credit Agreement that causes
the Obligations (as defined in such agreement) to be immediately due and payable
without the necessity of any action by the Agent or Required Lenders under such
agreement, then all principal and interest on this note shall likewise be
immediately due and payable without the necessity of any action by the Lender.
In the event of a default in the payment of principal hereunder, such
principal amount shall thereafter bear interest at a rate of fourteen percent
(14%) per annum until paid. In addition, upon a default in any payment of
principal or interest, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
This note is one of the EARS Notes referred to in the Credit Agreement and
in the Equity Appreciation Rights Agreement dated as of November 9, 2001, as
amended, modified or supplemented from time to time (the "Equity Appreciation
Rights Agreement"), among the Borrower, the Agent and the Lenders parties
thereto. Capitalized terms not otherwise defined in this note shall have the
respective meanings assigned thereto in the Credit Agreement.
This note in entitled to the benefits and security of the Equity
Appreciation Rights Agreement and the other Loan Documents.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for the note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or ay other formality are hereby waived by all parties
bound hereon.
THE LAW OF THE STATE OF NORTH CAROLINA SHALL GOVERN THIS NOTE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
As provided in Section 3.04 of the Equity Appreciation Rights Agreement, the
Borrower irrevocably and unconditionally submits, for itself and its property,
to the jurisdiction of any North Carolina State court or Federal court of the
United States of America sitting in Charlotte, North Carolina, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this note or any related documents, or for recognition or enforcement of any
judgment.
[Signature page follows.]
IN WITNESS WHEREOF, the Borrower has caused this note to be made, executed
and delivered by its duly authorized representative as of the date and year
first above written, all pursuant to authority duly granted.
CONE ▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Exec. Vice President & CFO
