Exhibit 4.3.9
AMENDMENT NO. 9 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 9 TO CREDIT AGREEMENT (this "Agreement") is made and
entered into as of this 27th day of February, 2002, 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:
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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"), and Amendment No. 8 to Credit Agreement dated as of November 9, 2001
("Amendment No. 8" and, together with Amendment Xx. 0, Xxxxxxxxx Xx. 0,
Xxxxxxxxx Xx. 0, Amendment Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0 and Amendment
No. 7, the "Prior Amendments"; such Credit Agreement as heretofore amended, the
"Existing Credit Agreement");
WHEREAS, the Borrower has requested the Agent and the Lenders to amend the
Borrowing Base under the Existing Credit Agreement as hereinafter set forth, 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 Agreement" as used herein and in the
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other Loan Documents shall mean the Existing 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. The Existing Credit Agreement is
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hereby amended as follows, effective as of the date hereof:
(a) The following definition of "Ninth Amendment Closing Date" is
added to Section 1.1 of the Credit Agreement:
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"'Ninth Amendment Closing Date' means February 27th, 2002."
(b) The definition of "Overadvance Basket" in Section 1.1 of the
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Credit Agreement is amended in its entirety, so that as amended it shall
read as follows:
"'Overadvance Basket' means an amount of up to $59,500,000, as
modified from time to time in accordance with Section 2.1(h)."
(c) Section 2.1(h) of the Credit Agreement is amended in its
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entirety, so that as amended it shall read as follows:
"Mandatory Changes in Overadvance Basket. From the Ninth
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Amendment Closing Date through March 31, 2002, the Overadvance
Basket shall be $59,500,000. Thereafter, the Overadvance Basket
shall be (i) $57,500,000 from April 1, 2002 through June 30, 2002,
inclusive, (ii) $52,000,000 from July 1, 2002 through September 30,
2002, inclusive, and (iii) $50,000,000 from October 1, 2002 through
the Stated Termination Date. Each reduction of the Overadvance
Basket shall be accompanied by payments and prepayments of the
Revolving Credit Facility to the extent that the amount of Senior
Debt Outstandings exceeds the Borrowing Base after giving effect to
such reduction, each such repayment or prepayment to 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 repaid or
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prepaid."
3. Guarantors. Each of the Guarantors has joined into the execution of
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this Agreement for the purpose of consenting to the amendments 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
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represents, warrants and certifies that:
(a) The representations and warranties made by it in Article VIII of
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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
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each Lender pursuant to Section 9.1(a) and (b) of the Credit Agreement;
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(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
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giving effect to the transaction contemplated by this Agreement;
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(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)
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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
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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.
6. Full Force and Effect of Amendment. Except as hereby specifically
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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
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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
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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
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the Loan Documents to the "Credit Agreement" shall mean the Credit Agreement as
amended hereby.
10. Conditions. The effectiveness of this Agreement shall be subject to
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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) 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 to the effective date hereof, including without
limitation all 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);
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(iii) 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;
(iv) any additional agreements, instruments or documents which
it may reasonably request in connection herewith; and
(b) The correctness in all respects on the date hereof of the
representations and warranties of the Borrower contained herein.
11. Release. Each of the Borrower and each Guarantor acknowledges that it
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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.]
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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: 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
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Register
Name: Xxxx X. Register
Title: Principal
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior 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
JPMORGAN/CHASE BANK formerly know as
The Chase Manhattan Bank successor by
merger to Xxxxxx Guaranty Trust Company of
New York
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Managing Director
