Exhibit 4.3.10
AMENDMENT NO. 10 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 10 TO CREDIT AGREEMENT (this "Agreement") is made and
entered into as of this 2nd day of December, 2002, by and among CONE ▇▇▇▇▇
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. 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"), Amendment No. 8 to Credit Agreement dated as of November 9, 2001
("Amendment No. 8") and Amendment No. 9 to Credit Agreement dated as of February
27, 2002 ("Amendment No. 9" and, together with Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇,
▇▇▇▇▇▇▇▇▇ ▇▇. ▇, Amendment No. 4, Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇
▇▇. ▇ and Amendment No. 8, the "Prior Amendments"; such Credit Agreement as
heretofore amended, the "Existing Credit Agreement"); and
WHEREAS, the Borrower has requested the Agent and the Lenders to amend the
Existing Credit Agreement to extend the Stated Termination Date to May 30, 2003,
and to provide certain additional reporting requirements, as hereinafter set
forth, and the Agent and the Lenders are agreeable to such amendments;
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 Existing Credit Agreement as previously and as
hereby amended and as from time to time further amended, modified, supplemented
or redacted. 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 hereby
amended as follows, effective as of the date hereof:
(a) 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 May 30, 2003."
(b) Section 9.1 of the Credit Agreement is amended by adding the
following subsection (m), immediately after subsection (l) and before the
last sentence of Section 9.1:
"(m) On or before January 22, 2003, the Borrower shall deliver to
the Agent and each Lender a detailed recapitalization proposal which
shall have been approved by the Borrower's board of directors and
shall state the terms for a recapitalization of the Borrower and its
Subsidiaries (including repayment of all Obligations and Senior Note
Obligations) on a schedule that would provide for such
recapitalization to occur on or before the Stated Termination Date. At
any time or times requested by the Agent, the Borrower shall cause its
officers to meet with the Agent and the Lenders to discuss the terms
of such proposal and the status of the Borrower's recapitalization
efforts."
3. Guarantors. Each of the Guarantors has joined into the execution of 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
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 as provided in
the Credit Agreement.
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. Amendment Fees. Concurrently with the closing of this Agreement, the
Borrower will pay to the Agent (for the benefit of each Lender) an amendment fee
(each, an "Amendment Fee") in an amount equal to (a) 0.25 percent (0.25%)
multiplied by (b) the Revolving Credit Commitment of such Lender as of the date
of such closing. Such Amendment Fees shall be fully-earned upon becoming due and
payable, shall be non-refundable for any reason whatsoever and shall be in
addition to any other fee, cost or expense payable pursuant to the Credit
Agreement, any other Loan Document or any other agreement.
10. Conditions. The effectiveness of this Agreement shall be subject to
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) the acknowledgment of General Electric Capital Corporation
under the Receivables Purchase Agreement;
(iii) a fully-executed amendment to the Senior Note Agreement, in
full force and effect, extending to May 30, 2003 the prepayment of
Senior Note Obligations that had previously been scheduled for January
15, 2003 pursuant to Section 4A of the Senior Note Agreement;
(iv) 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);
(v) 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; and
(vi) 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
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.]
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 ▇▇▇▇▇ CORPORATION
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
GUARANTORS:
CIPCO S.C., INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Secretary
CONE FOREIGN TRADING LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
AGENT:
BANK OF AMERICA, N.A. as Agent for the Lenders
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇ ▇. Register
Name: ▇▇▇▇ ▇. Register
Title: Principal
WLR RECOVERY FUND II, LP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. Vice President
SUNTRUST BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
JPMorgan Chase Bank formerly know as
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director