EXHIBIT 4.4(H)
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (the "Agreement"), dated as of January 28,
2000, is entered into by XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent
(the "Agent") for each of the Banks, as defined in the Credit Agreement (as
defined below) party to the Credit Agreement (collectively, the "Banks"), in
favor of CONE XXXXX CORPORATION, a North Carolina corporation (the "Borrower"):
R E C I T A L S
WHEREAS, the Borrower, the Agent and the Banks have entered into that
Credit Agreement dated as of August 7, 1997, as amended by that Amendment No. 1
and Waiver to the Credit Agreement dated as of October 3, 1999 (the "Credit
Agreement");
WHEREAS, in connection with that certain Credit Agreement to be dated
of even date herewith by and among the Borrower, Bank of America, N.A., as
Revolving Credit Agent ("Revolving Credit Agent" or "Bank of America"), and the
lenders party thereto from time to time, Bank of America is requiring that the
Credit Agreement and the Notes issued pursuant thereto (the "Notes") be
terminated; and
WHEREAS, on the date hereof the Borrower has terminated the Commitments
(as defined in the Credit Agreement) and has prepaid its Loans (as defined in
the Credit Agreement), with respect to principal, interest and costs, under the
Credit Agreement in full and, in connection therewith, the Borrower has
requested that the Agent terminate the Credit Agreement and the Notes (except to
the extent the terms and provisions of such documents provide rights or remedies
to the Agent or the Banks which survive a termination of the Commitments) and
release the rights and obligations of the Borrower and its Subsidiaries created
pursuant to the Credit Agreement and the Notes.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
SECTION 2. PAYOFF AMOUNT. The total principal amount of all Loans
outstanding under the Credit Agreement as of the date hereof is $72,000,000. The
total amount of interest, fees and other amounts due under the Credit Agreement
as of the date hereof is $404,782.22. The total payoff amount of principal,
interest, fees and all other amounts due under the Credit Agreement as of the
date hereof is $72,404,782.22 (the "Payoff Amount").
SECTION 3. TERMINATION OF AGREEMENTS. Upon receipt of the Payoff
Amount, the Credit Agreement and each of the Notes is hereby terminated (except
to the extent the terms and provisions of the Credit Agreement provide rights or
remedies to the Agent or the Banks which expressly survive termination of the
Commitments) and shall be of no further force and effect from and after the date
hereof; provided that terms and provisions that provide for rights or remedies
to the Agent or the Banks which expressly survive such termination, and any
rights of indemnification granted thereby to the Agent and the Banks and all
88
obligations of the Borrower or any Subsidiary to pay expenses under the Credit
Agreement, shall survive and shall not be terminated.
SECTION 4. DELIVERY OF NOTES. The Agent agrees to cause to be delivered
to the Borrower on the effective date hereof, the Notes.
SECTION 5. FURTHER ASSURANCES. Upon and after the effective date
hereof, the Agent shall execute and deliver, at the Borrower's expense, such
documents, instruments and other agreements, as the Borrower or Bank of America
shall reasonably request to evidence the termination and release effected
hereby.
SECTION 6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. COUNTERPARTS. This Agreement may be executed in any number
of counterparts each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
AS AGENT FOR THE BANKS
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
CONE XXXXX CORPORATION
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: EVP and CFO
89
