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Exhibit 4.4(a) [CONFORMED COPY]
AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT
AMENDMENT NO. 1 AND WAIVER (this "Amendment") dated as of October 3, 1999
to the Credit Agreement dated as of August 7, 1997 (the "Credit Agreement")
among CONE XXXXX CORPORATION, the BANKS listed therein and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Agent. The parties hereto agree as follows: Section 1.
Defined Terms; References. Unless otherwise specifically defined herein, each
term used herein which is defined in the Credit Agreement has the meaning
assigned to such term in the Credit Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Credit Agreement shall, after this Amendment becomes effective, refer to the
Credit Agreement as amended hereby. As used herein, the term "Redwood Purchase
Agreement" refers to the Receivables Purchase and Servicing Agreement dated as
of September 1, 1999 among Cone Receivables II LLC, the Borrower, Redwood
Receivables Corporation and General Electric Capital Corporation, as Operating
Agent and Collateral Agent. Section 2. Limited Waiver. At the request of the
Borrower, the Banks hereby waive any Default which may exist under Section 5.10
or Section 5.11 of the Credit Agreement, such waiver to be effective solely for
the period commencing on the date hereof and ending on November 30, 1999. The
waiver granted pursuant to this Section 2 shall be limited precisely as written,
and shall not extend to any Default under any other provision of the Credit
Agreement or to any Default under Section 5.10 or 5.11 of the Credit Agreement
which may exist after the expiration of this waiver (including, for avoidance of
doubt, any Default which may exist at October 3, 1999 but for this waiver).
Section 3. Amendments Relating to Receivables Purchase Agreement . The following
conforming amendments are made to reflect the form of the Redwood Purchase
Agreement: (a) Section 1.01 of the Credit Agreement is amended by inserting the
following definition in appropriate alphabetical order:
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"Special Purpose Company" means the special purpose entity created to
purchase accounts receivable from the Borrower and otherwise consummate the
transactions contemplated by the Receivables Purchase Agreement, which entity is
Cone Receivables II LLC on September 1, 1999. (b) The definitions of
"Consolidated Subsidiary" and "Subsidiary" in Section 1.01 of the Credit
Agreement are each amended by inserting immediately at the end thereof the
phrase, "and, including in any event, the Special Purpose Company". (c) Section
5.08(b) of the Credit Agreement is amended by (i) inserting immediately after
the words "except that" the clause number "(i)" and (ii) inserting at the end of
such Section the phrase A and (ii) the Special Purpose Company may incur or be
liable with respect to Debt in accordance with the terms of the Receivables
Purchase Agreement". (d) Section 5.13(j) of the Credit Agreement is amended by
(i) inserting immediately after the word "Borrower" the phrase "pursuant to the
Transfer Agreement (as defined in the Receivables Purchase Agreement) or the
Special Purpose Company" and (ii) deleting the amount "$65,000,000" in clause
(i) of the proviso and substituting therefor the amount "$50,000,000". (e) The
first proviso in Section 5.14 of the Credit Agreement is amended by (i)
inserting immediately after the word "Borrower" the phrase "and the Special
Purpose Company" and (ii) inserting immediately before the phrase "Receivables
Purchase Agreement" the phrase "Transfer Agreement (as defined in the
Receivables Purchase Agreement) and the". Section 4. Pricing Schedule. The
Pricing Schedule is amended in its entirety and replaced by the Pricing Schedule
attached hereto. Section 5. Representations of the Borrower. The Borrower
represents and warrants that after giving effect to the waiver granted pursuant
to Section 2 above and the amendments set forth in Sections 3 and 4 above, (i)
the representations and warranties of the Borrower set forth in Article 4 of the
Agreement will be true on and as of the date hereof and (ii) no Default will
have occurred and be continuing on such date. Section 6. Costs, Fees and
Expenses. On or before the Amendment Effective Date referred to below, the
Borrower shall pay of all costs, fees and expenses (including, without
limitation, reasonable legal fees and expenses) and other compensation payable
to the Agent on or prior to such date in connection with this Amendment.
Section 7. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York. Section 8. Counterparts.
This Amendment may be signed in any number of counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. Section 9. Effectiveness. This Amendment shall
become effective on the first date (the "Amendment Effective Date") on which the
Agent shall have received (i) counterparts hereof signed by each of the Required
Banks and the Borrower (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation from such
party of execution of a counterpart hereof by such party) and (ii) evidence
satisfactory to the Agent that the Borrower shall have received waivers on no
less favorable terms of the corresponding covenants in Paragraphs 6A(2) and
6A(3) its Note Agreement dated as of August 13, 1992, as amended, with The
Prudential Insurance Company of America and in Section 32 of the Master Lease
dated as of October 24, 1994, as amended, between TBC Realty II Corporation, as
lessor, and the Borrower, as lessee.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
CONE XXXXX CORPORATION
By: /s/ Xxxxx X. Xxxx
Title: Treasurer
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Bank and as Agent
By: /s/ Xxxxxxxx X. Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.
(successor to NationsBank, N.A.)
By: /s/ X. Xxxxxx Xxxxx
Title: Managing Director
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx Xxxxxxxxx, V
Title: Senior Vice President
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxx
Title: Vice President
