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AMENDMENT NO. 6 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 6 TO CREDIT AGREEMENT (this "Agreement") is made and
entered into as of this 25th day of September, 2001, by and among CONE XXXXX
CORPORATION, a North Carolina corporation (the "Borrower"), BANK OF AMERICA,
N.A., a national banking association, 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. 2 to Credit Agreement dated as of
December 12, 2000, Waiver and Amendment No. 3 to Credit Agreement dated as of
April 23, 2001, Amendment No. 4 to Credit Agreement dated as of June 28, 2001
and Amendment No. 5 to Credit Agreement dated as of August 10, 2001 (as
heretofore and hereby amended, and as from time to time further amended,
supplemented or replaced, the "Credit Agreement");
WHEREAS, the Borrower has requested the Agent and the Lenders to amend
the Credit Agreement to extend the Stated Termination Date to December 7, 2001,
and the Agent and the Lenders are agreeable to such amendment;
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 Agreements as used herein and in the
other Loan Documents shall mean the Credit Agreement as previously and as hereby
amended and as from time to time further amended or modified. Unless the context
otherwise requires, all capitalized terms used herein without definition shall
have the respective meanings provided therefor in the Credit Agreement.
2. Amendment to Credit Agreement. 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 December 7, 2001.
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3. Guarantors. Each of the Guarantors has joined into the execution
of this Agreement for the purpose of consenting to the amendment contained
herein and reaffirming its guaranty of the Obligations as amended by the terms
of this Agreement.
4. 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 transaction 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.
5. 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 by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
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6. 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.
7. 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.
8. 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.
9. Credit Agreement and Other Loan Documents. All references in any of
the Loan Documents to the "Credit Agreement" shall mean the Credit Agreement as
amended hereby.
10. Conditions to Effectiveness. This Agreement shall become effective
as of the date hereof provided the Agent shall have received at least one
executed copy, certified by the Borrower, of each of (a) the approval letter
required under the Securitization Intercreditor Agreement, and (b) an amendment
to the Senior Note Agreement, in form and substance satisfactory to the Agent
and in full force and effect, extending to December 7, 2001 the prepayment of
Senior Note Obligations that had previously been scheduled for November 7, 2001
pursuant to Section 4A of the Senior Note Agreement.
[Signature pages follow.]
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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 XXXXX CORPORATION
By: /s/ W. Xxxxx Xxxxxxx
Name: W. Xxxxx Xxxxxxx
Title: Treasurer
GUARANTORS:
CIPCO S.C., INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary
CONE FOREIGN TRADING LLC
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
AGENT:
BANK OF AMERICA, N.A. as Agent for the Lenders
By: /s/ Xxxx X. Register
Name: Xxxx X. Register
Title: Principal
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LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Register
Name: Xxxx X. Register
Title: Principal
FIRST UNION NATIONAL BANK
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
SUNTRUST BANK
By: /s/ Xxxxxx X. Xxxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Managing Director
