EXHIBIT 4.3.2
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Amendment") is made and
entered into as of this 12th day of December, 2000, 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 that certain Amendment No. 1 to
Credit Agreement dated as of July 14, 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 and Consent.
(a) Subject to the conditions set forth herein, the definition of
"Consolidated Net Worth" in Section 1.1 the Credit Agreement is hereby
amended (a) by inserting after the end of clause (iii) thereof the
phrase "plus (iv) the after-tax amount of the charges associated with
the closure of the Borrower's Raytex facility not to exceed $45,000,000
of pre-tax charges which will be incurred by December 31, 2000," and
(b) by renumbering the remaining clauses in such definition as "(v)"
and "(vi)" respectively.
(b) The Lenders signatory hereto hereby consent to the release of
Cone Global Finance Corp., a California corporation ("Cone Global"), as
a Guarantor and as a party to any Security Document executed by it,
provided that
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Cone Global shall be dissolved within ninety (90) day of the date
hereof. It shall be an Event of Default under the Credit Agreement if
Cone Global is not dissolved by the end of such nintey (90) day period.
3. 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 Amendment 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 Amendment 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
Amendment;
(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.
4. Entire Agreement. This Amendment 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 Amendment 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.
5. 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.
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6. Counterparts. This Amendment may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
7. Enforceability. Should any one or more of the provisions of this
Amendment 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.
8. 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.
9. Condition to Effectiveness. This Amendment shall not become
effective until the Agent shall have received at least one executed copy,
certified by the Borrower, of 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.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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. Xxxxx
Name: Xxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
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/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Senior Vice President
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WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: 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 Xxxx
Name: Xxxxx Xxxx
Title: Vice President
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