Exhibit 4.2.22
AMENDMENT OF
1992 NOTE AGREEMENT
This Amendment of 1992 Note Agreement ("Amendment"), entered into as of
March 22, 2002, 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 a certain amendment be made to the
Note Agreement;
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 5L of the Note Agreement. Paragraph 5L of the Note
Agreement is amended in its entirety to read as follows:
5L. Credit Facility. The Company shall maintain at all times a
revolving credit facility having a maturity date no earlier than
January 15, 2003 with at least $67,000,000 in aggregate commitments
available thereunder, less any Sharing Payments or Disposition
Payments (as defined in the Senior Debt Intercreditor Agreement)
received by the lenders with respect to the Credit Agreement under
Section 3.4 of the Senior Debt Intercreditor Agreement, and
otherwise in form and substance satisfactory to the Required
Holders.
2. Conditions of Effectiveness. Upon satisfaction of the following, the
effective date of this Amendment shall be March 22, 2002 (the "Effective Date").
This Amendment shall become effective when, and only when, (a) 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;
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(ii) such other documents, instruments, approvals or opinions as the
Noteholder may reasonably request.
(b) The Company shall have paid all costs and expenses (including legal
fees) incurred by the Noteholder.
(c) 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 31,
2001.
3. Representations and Warranties.
(a) 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.
(b) 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 (A) its charter or
by-laws, (B) law or (C) 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.
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4. Miscellaneous.
4A. Reference to and Effect on the Note Agreement. (a) 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.
(b) 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.
(c) 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.
4B. 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 4B.
4C. 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.
4D. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
4E. 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/Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
Signature page to March 2002 Amendment of 1992 Note Agreement
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing
Amendment of 1992 Note Agreement, dated as of Xxxxx 00, 0000 (xxx "Xxxxxxxxx"),
(xx) 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/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary
CONE FOREIGN TRADING LLC
By /s/Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
Signature page to March 2002 Amendment of 1992 Note Agreement
