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AMENDMENT OF
1992 NOTE AGREEMENT
This Amendment of 1992 Note Agreement ("Amendment"), entered into as of
October 25, 2001, by and among CONE XXXXX CORPORATION (the "Company") and THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA ("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 the required prepayment of the
Notes currently scheduled for December 7, 2001 be postponed until December 22,
2001, and that the Noteholder agree that the maturity date of the revolving
credit facility maintained under paragraph 5L the Note Agreement be extended to
December 22, 2001;
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; 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 4A of the Note Agreement. Subparagraph (i) of
Paragraph 4A is amended in its entirety to read as follows:
4A. Required Prepayments. (i) Required Prepayments. Until the
Notes shall be paid in full, the Company shall apply to the prepayment
of the Notes, without premium, the sum of $10,714,285.00 on August 13
in each of the years 1996 to 1999, inclusive, and on August 7, 2000 an
amount equal to the Sharing Payment received by Prudential on August 7,
2000, and on December 22, 2001 the sum equal to (A) $10,714,285.00 plus
(B) the difference between $10,714,285.00 and the principal payment
made on August 7, 2000, and such principal amounts of the Notes,
together with interest thereon to the prepayment dates, shall become
due on such prepayment dates. The remaining principal amount of the
Notes, together with interest accrued thereon, shall become due on
August 7, 2002, the maturity date of the Notes.
1B. Paragraph 5 of the Note Agreement. Paragraph 5L is amended in
its entirety to read as follows:
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5L. Credit Facility. The Company shall maintain at all times a
revolving credit facility having a maturity date no earlier than
December 22, 2001 with at least $73,000,000 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 in
aggregate commitments available thereunder and otherwise in form and
substance satisfactory to the Required Holders, and on or prior to
October 29, 2001, the Company shall maintain at all times a revolving
credit facility (or a binding commitment therefore with an effective
date on or prior to December 22, 2001) having a maturity date no
earlier than November 7, 2003 with at least $67,000,000 in aggregate
commitment available thereunder 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 October 25, 2001 (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;
(ii) a duly executed amendment to the Credit Agreement extending
the terminated date thereof to December 22, 2001 and otherwise in form
and substance acceptable to the Noteholder under which all conditions
have been satisfied and that is in full force and effect;
(iii) a duly executed letter from General Electric Capital
Corporation, in form and substance satisfactory to the Noteholder,
confirming that the conditions set forth in the securitization agreement
with the Company have been satisfied; and
(iv) 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; and
(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, 2000; and the Company shall have delivered to the Noteholder an
Officer's Certificate to such effect.
3. Representations and Warranties.
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(a) The Company hereby repeats and confirms each of the
representations and warranties made by it in the Credit Agreement (it being
understood that any reference therein to (i) Lender includes the Noteholder,
and (ii) Loan Documents includes the Note Agreement and the Notes, as amended
hereby) and in 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.
4. Consent to Amendment of Credit Agreement. The Required Holders
hereby consent to the amendment of Section 1.1 of the Credit Agreement as
set forth in Amendment No. 7 to Credit Agreement dated October 25, 2001.
5. Miscellaneous.
5A. 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.
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(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.
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]
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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/ Xxxxxx X. Xxxxxx, CFA
Name: Xxxxxx X. Xxxxxx, CFA
Title: Vice President
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CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing
Amendment of 1992 Note Agreement, dated as of October 25, 2001 (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/ 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
