Exhibit 4.2.24
AMENDMENT OF
1992 NOTE AGREEMENT
This Amendment of 1992 Note Agreement ("AMENDMENT"), entered into as of
April 30, 2003, by and among CONE XXXXX CORPORATION (the "COMPANY") and THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA (the "NOTEHOLDER").
WHEREAS, the parties hereto have executed and delivered that certain
Note Agreement dated as of August 13, 1992 (as previously amended and as it may
be further amended, modified or supplemented, the "NOTE AGREEMENT");
WHEREAS, the Company has requested that certain amendments be made to the
Note Agreement and the Notes;
WHEREAS, Noteholder is willing to enter into this Amendment subject to
the satisfaction of conditions and terms set forth herein;
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Note Agreement (as amended by this
Amendment); and
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO NOTE AMENDMENT.
1A. PARAGRAPH 1 OF THE NOTE AGREEMENT. The first sentence of
Paragraph 1 of the Note Agreement is amended by replacing the words "May 30,
2003" with the words "June 27, 2003".
1B. SUBPARAGRAPH 4A OF THE NOTE AGREEMENT. Subparagraph 4A(i) of the
Note Agreement is amended by replacing the words "May 30, 2003" with the words
"June 27, 2003".
1C. SUBPARAGRAPH 6A(I) OF THE NOTE AGREEMENT. Clause (f) of
Subparagraph 6(A)(i) of the Note Agreement is amended in its entirety to reads
as follows:
"(f) $68,500,000 thereafter."
1D. SUBPARAGRAPH 6A(II) OF THE NOTE AGREEMENT. Subparagraph 6A9ii) of
the Note Agreement is amended by replacing the words "December 29, 2002" with
the words "thereafter".
1E. SUBPARAGRAPH 6A(III) OF THE NOTE AGREEMENT. Subparagraph 6A(iii)
of the Note Agreement is amended by replacing the words "December 29, 2002" with
the words thereafter".
1F. PARAGRAPH 10B OF THE NOTE AGREEMENT. Paragraph 10B of the Note
Agreement is amended by inserting the following defined terms in the appropriate
alphabetical order in substitution of the corresponding defined terms set forth
therein:
"FISCAL QUARTER" means each of the three month fiscal periods of
the Company and its Subsidiaries with respect to 2000, ending on April
2, 2000, July 2, 2000, October 1, 2000 and December 31, 2000; with
respect to 2001, ending on April 1, 2001, July 1, 2001, September 30,
2001 and December 30, 2001; with respect to 2002, ending on March 31,
2002, June 30, 2002, September 29, 2002 and December 29, 2002; and
with respect to 2003, ending on March 30, 2003 and June 29, 2003.
"MATURITY DATE" means June 27, 2003.
2. CONDITIONS OF EFFECTIVENESS. Upon satisfaction of the following,
the effective date of this Amendment shall be April 30, 2003 (the "EFFECTIVE
DATE"). This Amendment shall become effective when, and only when:
2A. the Noteholder shall have received all of the following
documents, each (unless otherwise indicated) being dated the date hereof, in
form and substance satisfactory to the Noteholder:
(i) executed originals of each of this Amendment and the Consent
of Guarantors, attached hereto;
(ii) a duly executed Credit Agreement Amendment (as hereinafter
defined) in form and substance acceptable to the Noteholder under
which all conditions have been satisfied and that is in full force and
effect;
(iii) an executed allonge to the Note in the form of Exhibit A
hereto, and otherwise acceptable to the Noteholder;
(iv) a duly executed letter from General Electric Capital
Corporation, in form and substance acceptable to the Noteholder,
confirming that the conditions set forth in the securitization
agreement with the Company have been satisfied;
(v) a certificate of the Secretary or an Assistant Secretary of
the Company certifying the names and true signatures of the officers
authorized to sign this Amendment on behalf of the Company and any
other documents to be delivered by the Company hereunder;
(vi) the opinions of counsel to the Company and the Guarantors
containing such opinions and in form and substance acceptable to the
Noteholder and its counsel; and
(vii) such other documents, instruments, approvals or opinions as
the Noteholder may reasonably request.
2B. the Company shall have paid all costs and expenses (including
legal fees) incurred by the Noteholder.
2C. the representations and warranties contained herein shall be true
on and as of the date hereof, and there shall exist on the date hereof no Event
of Default or Default; except as disclosed in writing to the Noteholder, there
shall exist no material adverse change in the financial condition, business
operation or prospects of the Company or its Subsidiaries since December 30,
2001; and the Company shall have delivered to the Noteholder an Officer's
Certificate to such effect.
3. REPRESENTATIONS AND WARRANTIES.
3A. The Company hereby repeats and confirms each of the
representations and warranties made by it in (i) the Credit Agreement (it being
understood that any reference therein to (1) Lender includes the Noteholder, and
(2) Loan Documents includes the Note Agreement and the Notes (as amended hereby)
and (ii) paragraph 8H of the Note Agreement, as amended hereby, as though made
on and as of the date hereof, with each reference therein to "this Agreement",
"hereof", "hereunder", "thereof", "thereunder" and words of like import being
deemed to be a reference to the Note Agreement as amended hereby.
3B. The Company further represents and warrants as follows:
(i) The execution, delivery and performance by the Company of
this Amendment are within its corporate powers, have been duly
authorized by all necessary corporate action and do not contravene (1)
its charter or by-laws, (2) law or (3) any legal or contractual
restriction binding on or affecting the Company; and such execution,
delivery and performance do not or will not result in or require the
creation of any Lien upon or with respect to any of its properties.
(ii) No governmental approval is required for the due execution,
delivery and performance by the Company of this Amendment, except for
such governmental approvals as have been duly obtained or made and
which are in full force and effect on the date hereof and not subject
to appeal.
(iii) This Amendment constitutes the legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with its terms.
(iv) There are no pending or threatened actions, suits or
proceedings affecting the Company or any of its Subsidiaries or the
properties of the Company or any of its Subsidiaries before any court,
governmental agency or arbitrator, that may, if adversely determined,
materially adversely affect the financial condition, properties,
business, operations or prospects of the Company and it Subsidiaries,
considered as a whole, or affect the legality, validity or
enforceability of the Note Agreement, as amended by this Amendment.
(v) Other than as disclosed by the Company to the Noteholder in
writing, neither the Company nor any of its Subsidiaries is paying or
has paid any fee to the banks party to the Credit Agreement or to any
other party in connection with the Credit Agreement Amendment.
4. CONSENT TO AMENDMENT OF CREDIT AGREEMENT. The Required Holders
hereby consent to the amendment of the Credit Agreement by and among the
Company, Bank of America, N.A. and each of the Lenders under the Credit
Agreement as set forth in Amendment No. 11 to Credit Agreement dated April 30,
2003 (the "CREDIT AGREEMENT AMENDMENT").
5. MISCELLANEOUS.
5A. REFERENCE TO AND EFFECT ON THE NOTE AGREEMENT.
(i) Upon the effectiveness of this Amendment, on and after the
date hereof each reference in the Note Agreement to "this Agreement",
"hereunder", "hereof" or words of like import referring to the Note
Agreement, and each reference in any other document to "the Note
Agreement", "thereunder", "thereof" or words of like import referring
to the Note Agreement shall mean and be a reference to the Note
Agreement, as amended hereby.
(ii) Except as specifically amended and waived above, the Note
Agreement and all other related documents, are and shall continue to
be in full force and effect and are hereby in all respects ratified
and confirmed.
(iii) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any
holder of a Note under the Note Agreement or the Notes, nor constitute
a waiver of any provision of any of the foregoing.
5B. COSTS AND EXPENSES. The Company agrees to pay on demand all costs
and expenses incurred by any holder of a Note in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel. The
Company further agrees to pay on demand all costs and expenses, if any
(including, without limitation, reasonable counsel fees and expenses of
counsel), incurred by any holder of a Note in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Amendment, including, without limitation, counsel fees and expenses in
connection with the enforcement of rights under this paragraph 5B.
5C. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
5D. GOVERNING LAW. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York.
5E. ESTOPPEL. To induce the Noteholder to enter into this Amendment,
the Company hereby acknowledges and agrees that, as of the date hereof, there
exists no right of offset, defense or counterclaim in favor of the Company
against any holder of the Notes with respect to the obligations of the Company
to any such holder, either with or without giving effect to this Amendment.
[Signatures on Next Page]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CONE XXXXX CORPORATION
By /s/ W. Xxxxx Xxxxxxx
Name: W. Xxxxx Xxxxxxx
Title: Treasurer
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE TO 2002 AMENDMENT
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing
Amendment of 1992 Note Agreement dated as of April __, 2003 (the "AMENDMENT"),
(ii) consents to the execution and delivery of the Amendment by the parties
thereto, and (iii) reaffirms all of its obligations and covenants under the
Guaranty Agreement dated as of January 28, 2000, and agrees that none of such
obligations and covenants shall be affected by the execution and delivery of the
Amendment. This Consent and Reaffirmation may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
CIPCO S.C., INC.
By /s/ W. Xxxxx Xxxxxxx
Name: W. Xxxxx Xxxxxxx
Title: Treasurer
CONE FOREIGN TRADING LLC
By /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
EXHIBIT A TO AMENDMENT
[Form of Allonge]
ALLONGE
TO SENIOR NOTE
Attached and affixed to, and made a part of, that certain Senior Note
dated July 14, 2000 (the "NOTE") executed by Cone Xxxxx Corporation, as Payee
(the "COMPANY"), in favor of The Prudential Insurance Company of America.
The Company confirms, renews and restates its obligations pursuant to
the terms of the Note; PROVIDED that the words "May 30, 2003" in the second line
of the title are hereby replaced with "the Maturity Date".
Except as expressly provided above, the Note is not modified or amended
in any respect and remains in full, force and effect.
IN WITNESS WHEREOF, intending to be legally bound, the Company has
caused this Allonge to be executed and delivered on this 30th day of April,
2003.
CONE XXXXX CORPORATION
By: /s/ W. Xxxxx Xxxxxxx
Title: Treasurer
Acknowledged and agreed:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/Xxxx X. Xxxxx
Title: Vice President
