Exhibit 4.2.23
AMENDMENT OF
1992 NOTE AGREEMENT
This Amendment of 1992 Note Agreement ("AMENDMENT"), entered into as of
December 2, 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 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 "August 13, 2002" with the
words "May 30, 2003".
1B. PARAGRAPH 4A OF THE NOTE AGREEMENT. The last sentence of subparagraph
(i) of Paragraph 4A of the Note Agreement is amended in its entirety to read as
follows:
"The remaining principal amount of the Notes, together with interest
accrued thereon, shall become due on May 30, 2003, the maturity date of the
Notes."
1C. PARAGRAPH 5S OF THE NOTE AGREEMENT. The following Paragraph 5S is added
to the Note Agreement:
"5S. RECAPITALIZATION PROPOSAL. On or before January 22, 2003, the
Company shall deliver to you a detailed recapitalization proposal, which
shall have been approved by the Company's board of directors and shall
state the terms for a recapitalization of the Company and its Subsidiaries
(including repayment of all Obligations, as such term is defined in the
Credit Agreement, and all Senior Note Obligations) on a schedule that would
provide for such recapitalization to occur on or before the Maturity Date.
At any time or times requested by you, the Company shall cause its officers
to meet with you to discuss the terms of such proposal and the status of
the Company's recapitalization effort."
1D. 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.
"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, 2002.
"MATURITY DATE" means May 30, 2003.
"SENIOR NOTE OBLIGATIONS" means, as of any date, all obligations,
liabilities and indebtedness of the Company with respect to the payment of
(i) all outstanding principal, together with accrued and unpaid interest
and Yield-Maintenance Amount thereon, on the Notes, and (ii) all fees,
expenses and other payments required by or under the Note Agreement or any
other Related Document to which it is a party.
2. CONDITIONS OF EFFECTIVENESS. Upon satisfaction of the following, the
effective date of this Amendment shall be December 2, 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;
(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) certified copies of the resolutions of the Board of Directors of
the Company authorizing this Amendment and the transactions contemplated
thereby;
(vi) 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;
(vii) 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
(viii) such other documents, instruments, approvals or opinions as the
Noteholder may reasonably request.
(b) the Company shall have paid to the Noteholder an amendment fee equal to
0.25% of the outstanding principal amount of the Notes.
(c) the Company shall have paid all costs and expenses (including legal
fees) incurred by the Noteholder.
(d) 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.
(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.
(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. 10 to Credit Agreement dated December 2, 2002 (the "CREDIT
AGREEMENT AMENDMENT").
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.
(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]
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
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing Amendment
of 1992 Note Agreement dated as of December 2, 2002 (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 "August 7, 2002" in the second line
of the title are hereby replaced with "May 30, 2003".
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 2nd day of December, 2002.
CONE XXXXX CORPORATION
By: /s/ W. Xxxxx Xxxxxxx
Title: Treasurer
Acknowledged and agreed:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
