EXHIBIT 4.2.15
AMENDMENT OF
1992 NOTE AGREEMENT
This Amendment, entered into as of December 12, 2000, by and among CONE
MILLS 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 a modification of the definition of
"Consolidated Net Worth" in the Note Agreement;
WHEREAS, Noteholder is willing to enter into this Amendment subject to
the satisfaction of conditions and terms set forth herein; and
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Note Agreement;
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. Amendment to Paragraph 10B of the Note Agreement. The definition of
"Consolidated Net Worth" in Paragraph 10B is amended in its entirety to read as
follows:
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, the sum of the following in respect
of the Company and its Subsidiaries (determined on a consolidated basis
and excluding any upward adjustment after the Effective Date due to
revaluation of assets, including without limitation any FASB 133
Adjustment): (i) the amount of issued and outstanding share capital,
plus (ii) the amount of additional paid-in capital and retained
earnings (or, in the case of a deficit, minus the amount of such
deficit), plus (iii) the amount of any foreign currency translation
adjustment (if positive, or, if negative, minus the amount of such
translation adjustment), plus (iv) the after-tax amount of the charges
associated with the closure of the Company's Raytex facility not to
exceed $45,000,000 of pre-tax changes incurred by December 31, 2000,
minus (v) the amount of any treasury stock, minus (vi) (without
duplication of deductions in respect of items already deducted in
arriving at surplus and retained earnings) all reserves (other than
contingency reserves not allocated to any particular purpose),
including without limitation reserves for depreciation, depletion,
amortization, obsolescence, deferred income taxes, insurance and
inventory valuation, all as determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
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2. Consent. The Noteholder hereby consents to the release of Cone
Global Finance Corp., a California corporation ("Cone Global"), as a Guarantor
and a party to any Security Document executed by it, provided that Cone Global
shall be dissolved within ninety (90) days of the date hereof. It shall be an
Event of Default if Cone Global is not dissolved by the end of such ninety (90)
day period.
3. Conditions of Effectiveness. 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 this Amendment; and
(ii) a duly executed amendment to the Credit Agreement;
(b) The Company shall have paid all costs and expenses (including legal
fees) incurred by the Noteholder;
(c) Such other documents, instruments, approvals or opinions as the
Noteholder may reasonably request;
(d) An original Sixth Amendment to Securitization Agreements among Cone
Receivables II LLC, the Company, Cone Foreign Trading LLC, Redwood Receivables
Corporation, and General Electric Capital Corporation permitting the incurrence
of the charges associated with the closing of the Company's Raytex facility
described in the amended definition of "Consolidated Net Worth" set forth in
Section 1 of this Amendment; and
(e) The representations and warranties contained herein shall be true
on and as of the date hereof, there shall exist on the date hereof, no Event of
Default or Default; there shall exist no material adverse change in the
financial condition, business operation or prospects of the Company or its
Subsidiaries since July 14, 2000; and the Company shall have delivered to the
Noteholder an Officer's Certificate to such effect.
4. Representations and Warranties.
(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 to (i) Lender includes the Noteholder, and (ii) Loan Documents
includes the Note Agreement, as amended hereby, and the Notes) 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.
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(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
obligation 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, or
the Notes.
5. 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. 2 to Credit Agreement dated December 12, 2000.
6. Miscellaneous.
6A. 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 above, the Note Agreement and the
Notes, 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, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any holder of a
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Note under the Note Agreement or the Notes, nor constitute a waiver of any
provision of any of the foregoing.
6B. 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 6B.
6C. 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.
6D. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York.
6E. No Default or Claims; Waiver. To induce the Noteholder to enter
into this Amendment, the Company hereby acknowledges and agrees that, as of the
date hereof, (i) no Default or Event of Default exists, (ii) no right of offset,
recoupment, defense, counterclaim, claim or objection exists in favor of the
Company arising out of or with respect to any of the Notes or other obligations
of the Company owed to any holder of a Note, and (iii) the Noteholder has acted
in good faith and has conducted its relationships with the Company in a
commercially reasonable manner in connection with the negotiations, execution
and delivery of this Amendment and in all respects in connection with the Note
Agreement, the Company hereby waiving and releasing any such claims to the
contrary that may exist as of the date of this Amendment.
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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 MILLS CORPORATION
By /s/ Gary L. Smith
Name: Gary L. Smith
Title: Executive Vice President and
Chief Financial Officer
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By /s/ Robert R. Derrick
Name: Robert R. Derrick
Title: Vice President
December, 2000 Amendment to Cone Mills Note Agreement
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Agreed and accepted and hereby confirming and ratifying its obligations under
its respective Guaranty Agreement:
CONE GLOBAL FINANCE CORP.
By /s/ Gary L. Smith
Name: Gary L. Smith
Title: Vice President
CIPCO S.C., INC.
By /s/ Gary L. Smith
Name: Gary L. Smith
Title: Vice President
CONE FOREIGN TRADING LLC
By /s/ Gary L. Smith
Name: Gary L. Smith
Title: Executive Vice President & CFO
December, 2000 Amendment to Cone Mills Note Agreement
