Exhibit 4.2.25
EXECUTION COUNTERPART
AMENDMENT OF
1992 NOTE AGREEMENT AND
EQUITY APPRECIATION RIGHTS AGREEMENT
This Amendment of 1992 Note Agreement and Equity Appreciation Rights
Agreement ("Amendment"), is entered into as of May 27, 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 parties hereto have executed and delivered that certain
Equity Appreciation Rights Agreement dated as of November 9, 2001 (as previously
amended and as it may be further amended, modified or supplemented, the "Equity
Appreciation Rights Agreement");
WHEREAS, the Company has requested that certain amendments be made to
the Note Agreement and the Equity Appreciation Rights 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 1 of the Note Agreement. The first sentence of Paragraph
1 of the Note Agreement is amended by replacing the words "June 27, 2003" with
the words "March 15, 2004".
1B. Subparagraph 4A(i) of the Note Agreement. Subparagraph 4A(i) of the
Note Agreement is amended by replacing the words "June 27, 2003" with the words
"March 15, 2004"
1C. Subparagraph 4A(iii) of the Note Agreement. Subparagraph 4A(iii) of
the Note Agreement is amended by adding the following as Subparagraph
4A(iii)(C):
"(C) The principal amount of the outstanding Notes shall be
prepaid monthly (on the first Business Day of each month, commencing
July 1, 2003), in an amount equal to $250,000 per month. Each such
prepayment shall be accompanied by the payment of any losses, costs or
expenses (including loss of anticipated profits) incurred by the
Noteholder as a result of any payment or prepayment of any of the Notes
and accrued and unpaid interest on the amounts prepaid."
1D. Subparagraph 6A(i) of the Note Agreement. Subparagraph 6(A)(i) of
the Note Agreement is amended in its entirety to read as follows:
"(i) Consolidated Net Worth. Consolidated Net Worth to be less
than (a) $90,000,000 until through September 30, 2001, (b) $70,000,000
from September 30, 2001 until through December 30, 2001, (c)
$67,000,000 from December 30, 2001 until through Xxxxx 00, 0000, (x)
$67,000,000 from March 31, 2002 until through June 30, 2002, (e)
$68,000,000 from June 30, 2002 until through September 29, 2002, (f)
$68,500,000 from September 29, 2002 until through December 29, 2002,
(g) $68,500,000 from December 29, 2002 until through March 31, 2003,
(h) $81,500,000 from March 31, 2003 until through June 29, 2003, (i)
$81,500,000 from June 29, 2003 until through September 28, 2003 and (j)
$81,500,000 from September 28, 2003 until through the Maturity Date."
1E. Subparagraph 6A(ii) of the Note Agreement. Subparagraph 6A(ii) of
the Note Agreement is amended in its entirety to read as follows:
"(ii) Consolidated Interest Coverage Ratio. As of the end of
each Four-Quarter Period set forth below the Consolidated Interest
Coverage Ratio to be less than that set forth opposite each such
period:
Consolidated Interest
Four-Quarter Period Ending Coverage Ratio Must Exceed
-------------------------- --------------------------
September 30, 2001 0.96 to 1.00
December 30, 2001 0.73 to 1.00
March 31, 2002 0.71 to 1.00
June 30, 2002 1.15 to 1.00
September 29, 2002 1.34 to 1.00
December 29, 2002 1.74 to 1.00
March 31, 2003 1.74 to 1.00
June 29, 2003 2.30 to 1.00
September 28, 2003 2.00 to 1.00
December 28, 2003 1.95 to 1.00"
1F. Subparagraph 6A(iii) of the Note Agreement. Subparagraph 6A(iii) of
the Note Agreement is amended in its entirety to read as follows:
"(iii) Consolidated EBITDA. As of the end of each Four-Quarter
Period set forth below the Consolidated EBITDA to be less than that set
forth opposite each such period:
Four-Quarter Period Ending Consolidated EBITDA
-------------------------- --------------------------
September 30, 2001 $20,500,000
December 30, 2001 $15,500,000
March 31, 2002 $15,000,000
June 30, 2002 $23,500,000
September 29, 2002 $29,500,000
December 29, 2002 $38,000,000
March 31, 2003 $38,000,000
June 29, 2003 $40,000,000
September 28, 2003 $38,000,000
December 28, 2003 $35,500,000"
1G. 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 where appropriate:
"Bank Group EARS Notes" means the `EARS Notes' (as defined in
the Bank Group Equity Appreciation Rights Agreement).
"Bank Group EARS Stock" means the capital stock of the Company
issued to the banks party to the Credit Agreement or their respective
nominees pursuant to Section 2.06(b) of the Bank Group Equity
Appreciation Rights Agreement.
"Bank Group Equity Appreciation Rights Agreement" that certain
Equity Appreciation Rights Agreement dated as of November 9, 2001,
among the Company, the Senior Credit Agent (as defined in the Bank
Group Equity Appreciation Rights Agreement) and the banks party
thereto, as it may be amended, modified or supplemented from time to
time.
"Bank Group Initial Termination Payment" means the `Initial
Termination Payment' (as defined in the Bank Group Equity Appreciation
Rights Agreement).
"Consolidated EBITDA" means, with respect to the Company and
its Subsidiaries for any period ending on the date of computation
thereof, the sum of, without duplication, (i) Consolidated Net Income,
(ii) Consolidated Interest Expense,
(iii) taxes on income, (iv) amortization, (v) depreciation, (vi) any
charges (in an aggregate amount not to exceed $4,117,131.95) otherwise
deducted in calculating Consolidated Net Income which charges arise
from the payment of the Initial Termination Payment and the Bank Group
Initial Termination Payment and the issuance of the EARS Note, the Bank
Group EARS Notes and the Bank Group EARS Stock, and (vii) non-cash
charges otherwise deducted in calculating Consolidated Net Income
resulting from FASB No. 88 Adjustments, FASB No. 106 Adjustments, FASB
No. 112 Adjustments, FASB No. 121 Adjustments or FASB No. 144
Adjustments, all determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"EARS Note" means the promissory note of the Company
evidencing the amount owed to the Noteholder pursuant to the Equity
Appreciation Rights Agreement, which note is executed and delivered to
the Noteholder as provided in Section 2.06 of the Equity Appreciation
Right Agreement in substantially the form of Exhibit A to the Equity
Appreciation Rights Agreement.
"Excess Cash Flow" means, with respect to the Company and its
Subsidiaries for any Two-Quarter Period listed in Exhibit G hereto, the
result (if positive) of the following calculation:
(a) the difference of (i) Consolidated EBITDA for such period
minus (ii) Projected Consolidated EBITDA for such period, plus
(b) (in the case of the Two-Quarter Period ended June 30,
2002) the difference of (i) Projected PBGC Payments for such period
minus (ii) Actual PBGC Payments for such period, plus
(c) the difference of (i) Projected Non-Cash LIFO Adjustments
for such period minus (ii) Actual Non-Cash LIFO Adjustments for such
period.
"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; with
respect to 2003, ending on March 30, 2003, June 29, 2003, September 28,
2003 and December 28, 2003; and with respect to 2004, ending on March
28, 2004.
"Fiscal Year" means, with respect to fiscal year 1999, the
fiscal period of the Company and its Subsidiaries ending on January 2,
2000 and, with respect to fiscal year 2000, the fiscal period ending
December 31, 2000 and, with respect to fiscal year 2001, the fiscal
period ending December 30, 2001 and, with respect to the fiscal year
2002, the fiscal period ending December 29, 2002 and, with respect to
the fiscal year 2003, the fiscal period ending December 28, 2003 and,
with respect to the fiscal year 2004, the fiscal period ending January
2, 2005.
"Initial Termination Payment" has the meaning assigned to such
term in the Equity Appreciation Rights Agreement.
"Maturity Date" means March 15, 2004.
"Related Documents" shall mean the Notes, the Facility
Guaranty Agreements, the Security Documents, the Equity Appreciation
Rights Agreement, the EARS Note, the Account Control Agreements, and
any other agreement, instrument or other document executed in
connection therewith.
1H. Exhibit G to the Note Agreement. Exhibit G to the Note Agreement is
replaced in its entirety by Exhibit A attached hereto.
2. Amendments to Equity Appreciation Rights Agreement.
2.A. Article II of the Equity Appreciation Rights Agreement. Article II
of the Equity Appreciation Rights Agreement is amended by adding the following
as Section 2.06:
"Section 2.06 Termination of Option; Termination Payments and
EARS Note. Notwithstanding any provision in this Agreement to the
contrary, the rights of the Noteholder to receive any Rights Fee
pursuant to Sections 2.01 through 2.05 shall terminate on May 27, 2003
(the "Termination Date"). In consideration of the termination of such
rights, the Company shall:
(a) on the Termination Date, pay to the Noteholder an
initial termination payment (the "Initial Termination Payment")
in the amount of $617,569.79;
(b) on the Termination Date, execute and deliver to the
Noteholder one or more promissory notes in substantially the form
of Exhibit A hereto (such promissory notes together constituting
the "EARS Note") evidencing the obligation of the Company to pay
the Noteholder the principal amount of $617,569.79, at such times
and with such interest as set forth in the EARS Note; and
(c) pay to the Noteholder principal and interest in
accordance with the terms of the EARS Note."
2B. Exhibit A to the Equity Appreciation Rights Agreement. The Equity
Appreciation Rights Agreement is amended by adding Exhibit A hereto as Exhibit
A.
3. Conditions of Effectiveness. Upon satisfaction of the following,
the effective date of this Amendment shall be May 27, 2003 (the "Effective
Date"). This Amendment shall become effective when, and only when:
3A. 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 EARS Note in the form of Exhibit B 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.
3B. the Company shall have paid to the Noteholder an amendment fee
equal to 0.50% of the outstanding principal amount of the Notes.
3C. the Company shall have paid all costs and expenses (including legal
fees) incurred by the Noteholder.
3D. 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 29,
2002; and the Company shall have delivered to the Noteholder an Officer's
Certificate to such effect.
4. Representations and Warranties.
4A. 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) Noteholder 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.
4B. 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.
5. Equity Appreciation Rights Agreement and EARS Note. The Company and
each of the Guarantors hereby acknowledges and agrees that the Equity
Appreciation Rights Agreement and the EARS Note are Senior Note Documents as
defined by the Intercreditor Agreement, and the obligations, liabilities and
indebtedness of the Company arising from the Equity Appreciation Rights
Agreement and the EARS Note are Senior Note Obligations as defined by the
Intercreditor Agreement.
6. 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 Noteholders under the Credit
Agreement as set forth in Amendment No. 12 to Credit Agreement and Amendment to
Equity Appreciation Rights Agreement dated May 27, 2003 (the "Credit Agreement
Amendment").
7. Miscellaneous.
7A. 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.
7B. 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 7B.
7C. 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.
7D. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York.
7E. 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/ Xxxxxx X. Xxxxxx, CFA
Name: Xxxxxx X. Xxxxxx, CFA
Title: Vice President
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing
Amendment of 1992 Note Agreement dated as of May 27, 2003 (the "Amendment"),
(ii) consents to the execution and delivery of the Amendment by the parties
thereto, (iii) agrees to the terms of paragraph 5 of the Amendment, and (iv)
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: Asst Secretary
CONE FOREIGN TRADING LLC
By /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
EXHIBIT A TO AMENDMENT
EXHIBIT G TO THE NOTE AGREEMENT
Projected EBITDA, PBGC Payments and LIFO Adjustments
1. Two-Quarter
Period Ended Projected EBITDA
------------ ----------------
December 30, 2001 $12,410,000
June 30, 2002 $17,062,000
December 29, 2002 $24,706,000
June 29, 2003 $18,676,000
December 28, 2003 $20,754,000
2. Two-Quarter
Period Ended Projected PBGC Payments
------------ -----------------------
June 30, 2002 $1,200,000
3. Two-Quarter Projected Non-Cash
Period Ended LIFO Adjustments
------------ ----------------
December 30, 2001 $1,600,000
June 30, 2002 $0
December 29, 2002 negative $31,000
June 29, 2003 $0
December 28, 2003 $400,000
EXHIBIT B TO AMENDMENT
Exhibit A
Form of EARS Note
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE OFFERED OR SOLD IN VIOLATION OF SUCH ACT.
CONE XXXXX CORPORATION
14.2 % NOTE DUE THE MATURITY DATE
$_____________ May 27, 2003
FOR VALUE RECEIVED, the undersigned, CONE XXXXX CORPORATION, a
corporation organized and existing under the laws of the State of North Carolina
(the "Company"), hereby promises to pay to THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA (the "Noteholder"), or registered assigns, the principal sum of
_________________ AND __/100 DOLLARS on the Maturity Date subject to the
immediately following paragraph, with interest (computed on the basis of a
360-day year having twelve 30-day months) on the unpaid balance thereof (a) at
14.2 % per annum payable monthly in arrears on the first Business Day of each
month commencing June 2, 2003, subject to the immediately following paragraph,
and (b) on any overdue payment (including any overdue prepayment) of principal
and any overdue payment of interest, or if an Event of Default under the Note
Agreement (as hereinafter defined) shall have occurred and be continuing, at a
rate per annum from time to time equal to the greater of (i) 16.7 % or (ii) 2.5
% over the rate of interest publicly announced by The Bank of New York from time
to time in New York City as its Prime Rate payable semiannually as aforesaid
(or, at the option of the registered holder hereof, on demand). In addition,
upon a default in any prepayment or payment of principal or interest under this
Note or the Equity Appreciation Rights Agreement (as hereinafter defined), the
Company agrees to pay all principal and interest outstanding as of the date of
such default, as well as all costs of collection, including reasonable
attorneys' fees.
Payments of principal of and interest on this Note are to be made at
the main office of The Bank of New York in New York City or at such other place
as the holder hereof shall designate to the Company in writing, in lawful money
of the United States of America.
This Note is the EARS Note referred to in the Note Agreement, dated as
of August 13, 1992 (as amended, modified or supplemented, the "Note Agreement"),
among the Company and The Prudential Insurance Company of America and the Equity
Appreciation Rights Agreement, dated as of November 9, 2001 (as amended,
modified or supplemented, the "Equity Appreciation Rights Agreement"), among the
Company and the Noteholder, and is entitled to the benefits thereof.
In case an Event of Default, as defined in the Note Agreement, shall
occur and be continuing, the principal of this Note may be declared or otherwise
become immediately due and payable in the manner and with the effect provided in
the Note Agreement.
This Note is intended to be performed in the State of New York and
shall be construed and enforced in accordance with the law of such State. AS
PROVIDED IN PARAGRAPH 11L OF THE NOTE AGREEMENT AND SECTION 3.03 OF THE EQUITY
APPRECIATION RIGHTS AGREEMENT, THE COMPANY SUBMITS TO THE JURISDICTION OF THE
SUPREME COURT OF NEW YORK COUNTY, NEW YORK AND THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, IN ANY ACTION OR PROCEEDING RELATING TO
THIS NOTE.
CONE XXXXX CORPORATION
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE OFFERED OR SOLD IN VIOLATION OF SUCH ACT.
CONE XXXXX CORPORATION
14.2 % NOTE DUE THE MATURITY DATE
$576,398.45 May 27, 2003
FOR VALUE RECEIVED, the undersigned, CONE XXXXX CORPORATION, a
corporation organized and existing under the laws of the State of North Carolina
(the "Company"), hereby promises to pay to THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA (the "Noteholder"), or registered assigns, the principal sum of FIVE
HUNDRED AND SEVENTY-SIX THOUSAND THREE HUNDRED AND NINTY-EIGHT AND 45/100
DOLLARS on the Maturity Date subject to the immediately following paragraph,
with interest (computed on the basis of a 360-day year having twelve 30-day
months) on the unpaid balance thereof (a) at 14.2 % per annum payable monthly in
arrears on the first Business Day of each month commencing June 2, 2003, subject
to the immediately following paragraph, and (b) on any overdue payment
(including any overdue prepayment) of principal and any overdue payment of
interest, or if an Event of Default under the Note Agreement (as hereinafter
defined) shall have occurred and be continuing, at a rate per annum from time to
time equal to the greater of (i) 16.7 % or (ii) 2.5 % over the rate of interest
publicly announced by The Bank of New York from time to time in New York City as
its Prime Rate payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand). In addition, upon a default in any
prepayment or payment of principal or interest under this Note or the Equity
Appreciation Rights Agreement (as hereinafter defined), the Company agrees to
pay all principal and interest outstanding as of the date of such default, as
well as all costs of collection, including reasonable attorneys' fees.
Payments of principal of and interest on this Note are to be made at
the main office of The Bank of New York in New York City or at such other place
as the holder hereof shall designate to the Company in writing, in lawful money
of the United States of America.
This Note is the EARS Note referred to in the Note Agreement, dated as
of August 13, 1992 (as amended, modified or supplemented, the "Note Agreement"),
among the Company and The Prudential Insurance Company of America and the Equity
Appreciation Rights Agreement, dated as of November 9, 2001 (as amended,
modified or supplemented, the "Equity Appreciation Rights Agreement"), among the
Company and the Noteholder, and is entitled to the benefits thereof.
In case an Event of Default, as defined in the Note Agreement, shall
occur and be continuing, the principal of this Note may be declared or otherwise
become immediately due and payable in the manner and with the effect provided in
the Note Agreement.
This Note is intended to be performed in the State of New York and
shall be construed and enforced in accordance with the law of such State. AS
PROVIDED IN PARAGRAPH 11L OF THE NOTE AGREEMENT AND SECTION 3.03 OF THE EQUITY
APPRECIATION RIGHTS AGREEMENT, THE COMPANY SUBMITS TO THE JURISDICTION OF THE
SUPREME COURT OF NEW YORK COUNTY, NEW YORK AND THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, IN ANY ACTION OR PROCEEDING RELATING TO
THIS NOTE.
CONE XXXXX CORPORATION
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Exec. Vice President & CFO
By: /s/ W. Xxxxx Xxxxxxx
Name: W. Xxxxx Xxxxxxx
Title: Treasurer
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE OFFERED OR SOLD IN VIOLATION OF SUCH ACT.
CONE XXXXX CORPORATION
14.2 % NOTE DUE THE MATURITY DATE
$41,171.34 May 27, 2003
FOR VALUE RECEIVED, the undersigned, CONE XXXXX CORPORATION, a
corporation organized and existing under the laws of the State of North Carolina
(the "Company"), hereby promises to pay to THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA (the "Noteholder"), or registered assigns, the principal sum of
FORTY-ONE THOUSAND ONE HUNDRED AND SEVENTY-ONE AND 34/100 DOLLARS on the
Maturity Date subject to the immediately following paragraph, with interest
(computed on the basis of a 360-day year having twelve 30-day months) on the
unpaid balance thereof (a) at 14.2 % per annum payable monthly in arrears on the
first Business Day of each month commencing June 2, 2003, subject to the
immediately following paragraph, and (b) on any overdue payment (including any
overdue prepayment) of principal and any overdue payment of interest, or if an
Event of Default under the Note Agreement (as hereinafter defined) shall have
occurred and be continuing, at a rate per annum from time to time equal to the
greater of (i) 16.7 % or (ii) 2.5 % over the rate of interest publicly announced
by The Bank of New York from time to time in New York City as its Prime Rate
payable semiannually as aforesaid (or, at the option of the registered holder
hereof, on demand). In addition, upon a default in any prepayment or payment of
principal or interest under this Note or the Equity Appreciation Rights
Agreement (as hereinafter defined), the Company agrees to pay all principal and
interest outstanding as of the date of such default, as well as all costs of
collection, including reasonable attorneys' fees.
Payments of principal of and interest on this Note are to be made at
the main office of The Bank of New York in New York City or at such other place
as the holder hereof shall designate to the Company in writing, in lawful money
of the United States of America.
This Note is the EARS Note referred to in the Note Agreement, dated as
of August 13, 1992 (as amended, modified or supplemented, the "Note Agreement"),
among the Company and The Prudential Insurance Company of America and the Equity
Appreciation Rights Agreement, dated as of November 9, 2001 (as amended,
modified or supplemented, the "Equity Appreciation Rights Agreement"), among the
Company and the Noteholder, and is entitled to the benefits thereof.
In case an Event of Default, as defined in the Note Agreement, shall
occur and be continuing, the principal of this Note may be declared or otherwise
become immediately due and payable in the manner and with the effect provided in
the Note Agreement.
This Note is intended to be performed in the State of New York and
shall be construed and enforced in accordance with the law of such State. AS
PROVIDED IN PARAGRAPH 11L OF THE NOTE AGREEMENT AND SECTION 3.03 OF THE EQUITY
APPRECIATION RIGHTS AGREEMENT, THE COMPANY SUBMITS TO THE JURISDICTION OF THE
SUPREME COURT OF NEW YORK COUNTY, NEW YORK AND THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, IN ANY ACTION OR PROCEEDING RELATING TO
THIS NOTE.
CONE XXXXX CORPORATION
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Exec. Vice President & CFO
By: /s/ W. Xxxxx Xxxxxxx
Name: W. Xxxxx Xxxxxxx
Title: Treasurer
