Exhibit 4.3.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Agreement") is made and
entered into as of July 14, 2000 among each of CONE MILLS CORPORATION, a North
Carolina corporation having its principal place of business in Greensboro, North
Carolina (the "Borrower"), CONE GLOBAL FINANCE CORP., CIPCO S.C., INC., and CONE
FOREIGN TRADING LLC, each of which is a Subsidiary of the Borrower
(collectively, the "Guarantors" and each individually referred to as a
"Guarantor"), BANK OF AMERICA, N.A., a national banking association organized
and existing under the laws of the United States, having its principal office in
Charlotte, North Carolina, in its capacity as a Lender ("Bank of America") under
the Credit Agreement referred to below and EACH OTHER FINANCIAL INSTITUTION
CONSTITUTING A LENDER UNDER THE CREDIT AGREEMENT REFERRED TO BELOW (Bank of
America and such other financial institutions may be referred to individually as
a "Lender" or collectively as the "Lenders") and BANK OF AMERICA, N.A., in its
capacity (pursuant to the terms of the Credit Agreement referred to below) as
agent for the Lenders (in such capacity, or any successor agent appointed to
serve in such capacity, the "Agent").
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent have
entered into that certain Credit Agreement dated as of January 28, 2000 (the
"Credit Agreement"), pursuant to which the Lenders have made and agreed to make
certain Loans to, and issue Letters of Credit for the account of, the Borrower;
and
WHEREAS, the Agent and the Guarantors have entered into a Guaranty
Agreement dated as of January 28, 2000 (the "Facility Guaranty") pursuant to
which the Guarantors have guaranteed payment of the Borrower's Liabilities (as
defined in the Facility Guaranty); and
WHEREAS, the Borrower has requested that the Agent and the Lenders
consent to certain amendments to the Credit Agreement as specified below; and
WHEREAS, subject to the terms and conditions specified below, the Agent
and the Lenders are willing to consent to the requested amendments;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, the parties hereto do hereby
agree as follows:
1. Definitions. Any capitalized term used herein without definition
shall have the meaning set forth in the Credit Agreement.
2. Amendments to the Credit Agreement. Subject to the terms and
conditions set forth herein, the Credit Agreement is hereby amended as follows:
(a) The definition of "Fiscal Quarter" in Section 1.1 of the Credit
Agreement is amended and restated in its entirety as follows:
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"Fiscal Quarter" means each of the three month fiscal periods
of the Borrower and its Subsidiaries ending on January 2,
2000, April 2, 2000, July 2, 2000, October 1, 2000, December
31, 2000, April 1, 2001 and July 1, 2001.
(b) The definition of "Stated Termination Date" in Section 1.1 of the
Credit Agreement is amended and restated in its entirety as follows:
"Stated Termination Date" means August 7, 2001.
(c) The following new definition is inserted in Section 1.1 of the
Credit Agreement:
"Excess Facility Sale Proceeds" means the amount of
proceeds, net of transaction costs and expenses, received by
the Borrower from the sale or sale and leaseback or other
disposition of the Senior Lease Facility in excess of the
amount paid to fully satisfy the Senior Lease Obligations.
(d) Section 2.1(f) of the Credit Agreement is amended by inserting
after the first sentence thereof the following new sentence:
In addition to the foregoing, the Total Revolving Credit
Commitment shall be immediately and permanently reduced by the
amount of (i) any Excess Facility Sale Proceeds and (ii) all
proceeds of any other Sharing Payment (as defined in the
Senior Debt Intercreditor Agreement) received by the Agent or
the Lenders from time to time.
(e) 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 (i) $145,000,000 from the Closing Date
until (but excluding) the last day of the fiscal quarter that
includes the Closing Date (the "Closing Date Quarter"), and
(ii) as at the last day of each fiscal quarter of the Borrower
commencing with the Closing Date Quarter and until (but
excluding) the last day of the next following fiscal quarter
of the Borrower, the sum of (A) the amount of Consolidated Net
Worth required to be maintained pursuant to this Section
10.1(a) as at the end of the immediately preceding fiscal
quarter (or, in the case of the Closing Date Quarter, required
to be maintained as of the Closing Date), plus (B) 100% of the
aggregate amount of all increases in the stated capital and
additional paid-in capital accounts of the Borrower resulting
from the issuance of equity securities or other capital
investments, plus (C) 50% of Consolidated Net Income (if
positive) for each fiscal quarter ending after October 1,
2000.
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(f) The table appearing in Section 10.1(b) of the Credit Agreement is
amended to add the following to the end of such table:
Period Leverage Ratio Must Not Exceed
------ ------------------------------
Four Quarter Period ending
October 1, 2000 7.30 to 1.00
Four Quarter Period ending
December 31, 2000 5.80 to 1.00
Four Quarter Period ending
April 1, 2001 5.00 to 1.00
Four Quarter Period ending
July 1, 2001 5.00 to 1.00
(g) The table appearing in Section 10.1(c) of the Credit Agreement is
amended to add the following to the end of such table:
Interest Coverage Ratio
Period Must Exceed
------ -----------
Twelve Month Period ending
October 1, 2000 1.65 to 1.00
Twelve Month Period ending
December 31, 2000 1.95 to 1.00
Twelve Month Period ending
April 1, 2001 2.20 to 1.00
Twelve Month Period ending
July 1, 2001 2.20 to 1.00
(h) The table in Section 10.1(d) of the Credit Agreement is amended to
add the following to the end of such table:
Period Consolidated EBITDA Must Exceed
------ -------------------------------
Three Fiscal Quarters ending
October 1, 2000 $33,750,000
Four Fiscal Quarters ending
December 31, 2000 $45,000,000
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Four Fiscal Quarters ending
April 1, 2001 $50,000,000
Four Fiscal Quarters ending
July 1, 2001 $50,000,000
(i) Section 10.3(a) of the Credit Agreement is amended and restated in
its entirety as follows:
(a) Make or become committed to make U.S. Capital
Expenditures which exceed in the aggregate in any period
described below (on a noncumulative basis, with the effect
that amounts not expended in any Fiscal Year may not be
carried forward to a subsequent Fiscal Year), the amount set
forth opposite each such period:
U.S. Capital Expenditures
Period Not to Exceed
------ -------------
Fiscal Year ending December 31, 2000 $12,500,000
First Fiscal Quarter ending April 1, 2001 $ 6,500,000
Two Fiscal Quarters ending July 1, 2001 $12,500,000
(j) Section 10.3(b) of the Credit Agreement is amended and restated in
its entirety as follows:
(b) Make or become committed to make Mexican Capital
Expenditures from the Closing Date through and including the
Facility Termination Date unless (i) no Event of Default has
occurred and is continuing, (ii) such Mexican Capital
Expenditures are only for the purpose of purchasing certain
real property in Altamira, Mexico and making certain
improvements thereto, and (iii) such Mexican Capital
Expenditures do not exceed in the aggregate for the periods
described below (provided that any amount not expended in any
period may be carried forward and expended in any subsequent
period), the amount set forth opposite each such period:
Mexican Capital
Period Expenditures Not to Exceed
------ --------------------------
Fiscal Year ending December 31, 2000 $1,000,000
First Fiscal Quarter ending April 1, 2001 $ 250,000
Two Fiscal Quarters ending July 1, 2001 $ 500,000
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<PAGE>
(k) Section 10.7(g) of the Credit Agreement is amended and restated in
its entirety as follows:
(g) investments made at such time as no Event of
Default shall have occurred and be continuing relating to the
site in Altamira, Mexico (at which site the Borrower intends
to construct a denim manufacturing facility), not in excess of
the amounts set forth below for the periods indicated (but in
no event shall such facility construction be commenced prior
to the Facility Termination Date); provided that any amount
not invested during the period indicated may be carried
forward and invested in any following period.
Mexican Investments
Period Not to Exceed
------ -------------
Fiscal Year ending December 31, 2000 $9,000,000
First Fiscal Quarter ending April 1, 2001 $ 800,000
Two Fiscal Quarters ending July 1, 2001 $1,200,000
(l) Section 10.19 of the Credit Agreement is amended by
inserting the words "or the payment of the Senior Lease Obligations
from proceeds of the sale or other disposition of the Senior Lease
Facility" after the phrase "Section 10.5(j)" in the last line thereof.
(m) Section 11.1(d) of the Credit Agreement is amended by
inserting the words "or any Intercreditor Agreement" after the words
"Loan Documents" in the eighth line thereof.
3. Conditions Precedent. This amendment shall become effective only
upon the receipt by the Agent of the following, in form and substance
satisfactory to the Agent:
(a) originals of this Agreement executed by the Borrower, the
Guarantors and the Lenders;
(b) originals of Amended and Restated Intercreditor Agreement
dated the date hereof executed by the Collateral Agents and the Senior
Creditors other than the Bond Trustee;
(c) a copy of Amendment of 1992 Note Agreement, dated as of
the date hereof among the Borrower and Prudential, certified as true
and correct by an Authorized Officer of the Borrower (together with all
documents identified in subsections (a) and (b) above, the "Amendment
Documents");
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(d) an original Acknowledgement and Acceptance Letter dated as
of the date hereof from General Electric Capital Corporation reflecting
satisfaction with the terms of this Agreement;
(e) the favorable written opinion of counsel to the Credit
Parties with respect to, among other customary matters, the
enforceability of the provisions of this Agreement and the provisions
of the Credit Agreement amended hereby dated as of the date of this
Agreement, addressed to the Agent and the Lenders and reasonably
satisfactory to special counsel to the Agent;
(f) evidence that all fees payable by the Borrower to the
Agent and the Lenders as of the date of this Agreement have been paid
in full;
(g) the certificate of the chief financial officer of the
Borrower dated as of the date of this Agreement to the effect that (1)
the representations and warranties made by the Credit Parties in
Article VIII of the Credit Agreement and in each of the other Loan
Documents to which each such Credit Party is a party are true and
correct in all material respects on and as of the date hereof, except
to the extent that such representations and warranties expressly relate
to an earlier date (in which case they shall continue to be true as of
such earlier date), and (2) no Default or Event of Default exists or,
upon giving effect to the Amendment Documents, shall exist, occur or be
continuing;
(h) specimen signatures of officers of each Credit Party
executing this Agreement if such specimen signatures were not
previously delivered, certified by its secretary or assistant secretary
as of the date of this Agreement;
(i) copies of any Organizational Documents and Operating
Documents of any Credit Party which have been amended, modified or
amended and restated since January 28, 2000 certified by the secretary
or assistant secretary (or comparable official) of the Borrower or, in
the alternative, a certificate of the secretary or assistant secretary
(or comparable official) of the Borrower that no change to its or any
other Credit Party's Organizational Documents and Operating Documents
has occurred since January 28, 2000;
(j) certificate issued as of a recent date by the Secretary of
State of North Carolina as to the due existence and good standing of
the Borrower;
(k) copies of all additional agreements, instruments and
documents which the Lenders may reasonably request, such documents,
when appropriate, to be certified by appropriate governmental
authorities.
4. Consent of Guarantors. Each of the Guarantors has joined in the
execution of this Amendment solely for the purposes of consenting hereto and for
the further purpose of confirming its guaranty of payment of the Borrower's
Liabilities pursuant to the Facility Guaranty and all security granted therefor,
and each such Guarantor does hereby so consent hereto and confirm and ratify
such guaranty and grant of security.
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5. Representations and Warranties. In order to induce the Agent and the
Lenders to enter into this Agreement, the Borrower and the Guarantors represent
and warrant to the Agent and the Lenders as follows:
(a) The representations and warranties made by the Borrower or
Guarantor in Article VIII of the Credit Agreement and in each of the
other Loan Documents to which it is a party after giving effect to the
transactions contemplated by Amendment Documents are true and correct
in all material respects on and as of the date hereof, except to the
extent that such representations and warranties expressly relate to an
earlier date (in which case they continue to be true as of such earlier
date);
(b) 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 Agent and the
Lenders under Section 9.1 of the Credit Agreement, after giving effect
to the transactions contemplated by the Amendment Documents; and
(c) No Default or Event of Default has occurred and is
continuing.
6. Entire Agreement. This Agreement, together with all other Amendment
Documents and all Loan Documents (collectively, the "Relevant Documents"), 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. No promise,
condition, representation or warranty, express or implied, not herein set forth
shall bind any party hereto, and not one of them has relied on any such promise,
condition, representation or warranty. Each of the parties hereto acknowledges
that, except as otherwise expressly stated in the Relevant Documents, no
representations, warranties or commitments, express or implied, have been made
by any party to the other. None of the terms or conditions of this Agreement may
be changed, modified, waived or canceled orally or otherwise, except as
permitted pursuant to Section 13.6 of the Credit Agreement.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects by each party hereto
and shall be and remain in full force and effect according to their respective
terms.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
9. Governing Law. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the state of North Carolina.
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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. References. All references in any of the Loan Documents to the
"Credit Agreement" shall mean the Credit Agreement as amended hereby.
12. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Guarantors, the Lenders, the Agent and
their respective successors, assigns and legal representatives; provided,
however, that the Borrower and the Guarantors, without the prior consent of the
Lenders, may not assign any rights, powers, duties or obligations hereunder.
13. Expenses. Borrower agrees to pay to the Agent all reasonable
out-of-pocket expenses (including reasonable legal fees and expenses of counsel
to the Agent) incurred or arising in connection with the negotiation and
preparation of this Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
BORROWER:
---------
CONE MILLS CORPORATION
By: /s/ Gary L. Smith
------------------------------
Name: Gary L. Smith
-----------------------------
Title: Executive Vice President
----------------------------
AGENT:
------
BANK OF AMERICA, N.A.
By: /s/ E. Phifer Helms
------------------------------
Name: E. Phifer Helms
-----------------------------
Title: Managing Director
----------------------------
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LENDERS:
BANK OF AMERICA, N.A.
By: /s/ E. Phifer Helms
------------------------------
Name: E. Phifer Helms
-----------------------------
Title: Managing Director
----------------------------
FIRST UNION NATIONAL BANK
By: /s/ Roger Pelz
------------------------------
Name: Roger Pelz
-----------------------------
Title: Senior Vice President
----------------------------
WACHOVIA BANK, N.A.
By: /s/ Michael H. Trainor
------------------------------
Name: Michael H. Trainor
-----------------------------
Title: Vice President
----------------------------
SUNTRUST BANK
By: /s/ Samuel M. Ballasteros
------------------------------
Name: Samuel M. Ballasteros
-----------------------------
Title: Director
----------------------------
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK
By: /s/ Kimberly L. Turner
------------------------------
Name: Kimberly L. Turner
-----------------------------
Title: Vice President
----------------------------
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GUARANTORS:
CONE GLOBAL FINANCE CORP.
WITNESS:
/s/ Lindy Bode Aucoin By: /s/ Gary L. Smith
---------------------------- --------------------------------
/s/ Neil W. Koonce Name: Gary L. Smith
---------------------------- --------------------------------
Title: Vice President
--------------------------------
CIPCO S.C., INC.
WITNESS:
/s/ Lindy Bode Aucoin By: /s/ Gary L. Smith
---------------------------- --------------------------------
/s/ Neil W. Koonce Name: Gary L. Smith
---------------------------- --------------------------------
Title: Vice President
--------------------------------
CONE FOREIGN TRADING LLC
WITNESS:
/s/ Lindy Bode Aucoin By: /s/ Gary L. Smith
---------------------------- --------------------------------
/s/ Neil W. Koonce Name: Gary L. Smith
---------------------------- --------------------------------
Title: Vice President
--------------------------------
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