WAIVER AND AMENDMENT NO. 3 TO CREDIT AGREEMENT
THIS WAIVER AND AMENDMENT NO. 3 TO CREDIT AGREEMENT (this "Agreement")
is made and entered into as of this 23rd day of April, 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 that certain Amendment No. 1 to
Credit Agreement dated as of July 14, 2000 and by that certain Amendment No. 2
to Credit Agreement dated as of December 12, 2000 (as amended hereby and as from
time to time further amended, supplemented or replaced, the "Credit Agreement");
WHEREAS, the Borrower has requested and the Agent and the Lenders have
agreed, subject to the terms and conditions of this Agreement, to amend the
Credit Agreement to modify the definition of Consolidated Net Worth;
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 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. Amendments to Credit Agreement.
(a) Section 9.1 is hereby amended by inserting a new clause (j) at
the end thereof which shall read as follows:
(j) On the last Business Day of each week, the
Borrower shall deliver to the Agent projected cash flow
statements of the Borrower and its Subsidiaries for the 13
week period beginning on such date.
(b) Section 10.1(a) of the Credit Agreement is deleted in its
entirety and the following new Section 10.1(a) is inserted in
replacement thereof:
(a) Consolidated Net Worth. Permit Consolidated Net Worth to be
less than $138,000,000 as of the end of any Fiscal Quarter.
(c) The table appearing in Section 10.1(b) of the Credit Agreement
is amended by replacing the last two entries at the end of such table
with the following entries:
Period Leverage Ratio Must Not Exceed
-------------------------- ------------------------------
Four Quarter Period ending
April 1, 2001 7.50 to 1.00
Four Quarter Period ending
July 1, 2001 8.50 to 1.00
(d) The table appearing in Section 10.1(c) of the Credit Agreement
is amended by replacing the last two entries at the end of such table
with the following entries:
Interest Coverage Ratio
Period Must Exceed
-------------------------- -----------------------
Twelve Month Period ending
April 1, 2001 1.25 to 1.00
Twelve Month Period ending
July 1, 2001 1.25 to 1.00
(e) The table appearing in Section 10.1(d) of the Credit
Agreement is amended by replacing the last two entries at the end of
such table with the following entries:
Period Consolidated EBITDA Must Exceed
Four Fiscal Quarters ending
April 1, 2001 $35,000,000
Four Fiscal Quarters ending
July 1, 2001 $28,000,000
3. Amendment Fee. On the date hereof the Borrower shall pay to the
Agent for the pro rata benefit of the Lenders party hereto an Amendment Fee
equal to $182,500.
4. Financial Advisor to the Lenders. The Borrower shall pay upon demand
all costs and expenses incurred in connection with the hiring and retaining of
PricewaterhouseCoopers LLP ("PWC") as financial advisor to the Agent and the
Lenders. The Borrower further agrees to fully cooperate with PWC and to permit
PWC complete access to its books and records and any other information and to
allow PWC to discuss the affairs, finances and accounts of the Borrower with its
officers and its independent public accountants, all on a timely basis and as
requested from time to time, including, without limitation, such access and
cooperation as is necessary for PWC to begin its work on a part-time basis prior
to May 9, 2001 and on a full-time basis on and after May 9, 2001. The Borrower
further agrees to provide copies of its cost reduction and liquidity plan and
its balance sheet recapitalization plan to the Lenders and PWC on or before May
9, 2001.
5. Waiver of Default. The Agent and each of the undersigned Lenders
hereby waives any Default or Event of Default occuring directly or indirectly
due to the failure of the Borrower and its Subsidiaries to comply with the
Minimum Fixed Charge Coverage Ratio covenant set forth in paragraph (a) of Annex
G to the Receivables Purchase Agreement for the Fiscal Quarter ending April 1,
2001; provided that this waiver relates solely to the covenant and period
specified above, and nothing in this Agreement is intended, or shall be
construed, to waive any other Default or Event of Default under the Credit
Agreement; and provided further that the Receivables Purchase Agreement and the
Receivables Transfer Agreement shall remain in full force and effect without
amendment to the provisions thereof except for the amendments contained in that
certain Seventh Amendment to Securitization Agreements dated and as in effect as
of the date hereof (the "Securitization Amendment").
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) 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.
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 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.
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. 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.
12. Condition to Effectiveness. This Agreement shall become effective
as of April 1, 2001 provided the Agent shall have received (a) the Amendment Fee
and (b) at least one executed copy, certified by the Borrower, of each of (i) an
amendment to the Senior Note Agreement containing substantially the same
amendments as are contained herein and otherwise in form and substance
acceptable to the Agent and in full force and effect and (ii) the Securitization
Amendment in form acceptable to the Agent and in full force and effect.
[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 XXXXX CORPORATION
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President, General Counsel
& Secretary
AGENT:
BANK OF AMERICA, N.A. as Agent for the Lenders
By: /s/ X.Xxxxxx Xxxxx
Name: X. Xxxxxx Xxxxx
Title: Managing Director
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ X. Xxxxxx Xxxxx
Name: X. Xxxxxx Xxxxx
Title: Managing Director
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/ Xxxx Xxxxx Xxxxxx
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President
