FIRST AMENDED AND
RESTATED CREDIT NOTE
THIS FIRST AMENDED AND RESTATED CREDIT NOTE (hereinafter called the
"Note") is made and entered into as of the third (3rd) day of January,
1997, by and between SEI II L.P., formerly known as Shearson Equipment
Investors - II, a New York limited partnership (the "Partnership"), and
BUTTONWOOD LEASING CORPORATION, a Delaware corporation (the "Lender"),
assignee of The First National Bank of Maryland (the "Original
Lender").
WHEREAS, the Partnership heretofore executed and delivered to the
Original Lender that certain Credit Note dated December 9, 1981, in the
original principal amount of Seventeen Million Dollars ($17,000,000)
(the "Original Note"); and
WHEREAS, the Original Lender sold and assigned the Original Note to the
Lender on May 30, 1986; and
WHEREAS, on May 30, 1986, the Partnership and the Lender agreed (i)
that the principal amount of the Original Note shall remain constant;
and (ii) to decrease the rate of interest on the Original Note from one
and one quarter percent (1.25%) plus the Prime Rate (as defined in the
Original Note) to a rate equal to the prime rate charged by Bank
America Illinois, formerly Continental Illinois National Bank; and
WHEREAS, the Partnership and the Lender have agreed on an annual basis
to extend the maturity date of the Original Note, and the current
maturity date of the Original Note is January 3, 1997; and
WHEREAS, prior to January 3, 1997, the outstanding principal amount of
the Original Note was reduced from Seventeen Million Dollars
($17,000,000) to Seven Million Eight Hundred Thirty Nine Thousand
Dollars ($7,839,000); and
WHEREAS, the Partnership and the Lender have agreed to further extend
the maturity of the Original Note to the earlier of January 2, 1998, or
the date on which the Partnership sells the 25 covered xxxxxx river
barges that are owned by the Partnership (the "Barges"); and
WHEREAS, as of January 3, 1997, immediately following the application
of the principal payment in the amount of Five Million Five Hundred
Thousand Dollars ($5,500,000) made by the Partnership to the Lender on
such date, the outstanding principal amount of the Original Note will
be reduced from Seven Million Eight Hundred Thirty Nine Thousand
Dollars ($7,839,000) to Two Million Three Hundred Thirty Nine Thousand
Dollars ($2,339,000); and
WHEREAS, as of January 3, 1997, the amount of accrued and unpaid
interest of the Original Note is Nine Million Eight Hundred Twenty-Nine
Thousand Three Hundred Sixty Dollars ($9,829,360) and such amount
remains due and owing; and
WHEREAS, the Partnership and the Lender desire to restate the Original
Note, as amended hereby;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree, as between the Partnership and
the Lender, to amend and restate the Original Note to read as follows:
$2,339,000 January 3, 1997
FOR VALUE RECEIVED, the Partnership promises to pay to the order of
BUTTONWOOD LEASING CORPORATION (the "Lender") at the main office of the Lender
at c/x Xxxxxx Brothers, Inc., 3 World Financial Center, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000 or at such other place as the Lender may from time to time
designate, the Principal Sum of Two Million Three Hundred Thirty Nine Thousand
Dollars ($2,339,000) plus accrued interest as of the date hereof of Nine
Million Eight Hundred Twenty-Nine Thousand Three Hundred Sixty Dollars
($9,829,360) and agrees to pay quarterly installments of principal from the
date hereof until maturity, payable on April 1, 1997, July 1, 1997, and October
1, 1997 (each a "Payment Date") in an amount equal to the amount of interest
accrued on the unpaid principal balance from the later of the date hereof or
the immediately preceding Payment Date. The Partnership further agrees to pay
interest on the unpaid balances of principal hereunder from the date hereof
aturity, payable in arrears at maturity on January 2, 1998. Interest on the
outstanding principal balance shall be computed using simple interest at a
fluctuating interest rate per annum (based on a year of 360 days for the actual
number of days elapsed) at all times equal to the "Prime Rate" (as hereinafter
defined), which interest rate shall change automatically from time to time
effective as of the effective date of each change in the Prime Rate. "Prime
Rate" shall mean, as of any date, (i) the announced or published prime rate at
the Bank America Illinois of Chicago, Illinois, or its successor, or (ii) in
the absence of an announced or published prime rate by Bank America Illinois or
its successor, the Prime Rate reported in the Money Rates Column of The Wall
Street Journal, currently defined as being the base rate on corporate loans
posted by at least 75% of the nation's thirty largest banks (regardless of
whether such rate has actually been charged by any such bank); provided that,
in the event The Wall Street Journal (y) publishes more than one prime rate,
the highest of such rates shall be the "Prime Rate", or (z) publishes a
retraction or correction of any such rate, the rate reported in such retraction
or correction shall be the "Prime Rate." The outstanding Principal Sum and
accrued interest shall be repaid on the earlier of January 2, 1998 or the date
on which the Partnership sells the Barges.
All payments on account of the principal hereof shall be noted by the Lender on
the Schedule attached hereto and made part hereof; provided, however, that the
failure of the Lender to make any such notation shall not limit or otherwise
affect the obligations of the Partnership hereunder or under the Credit
Agreement (as hereinafter defined).
Payments of both principal and interest shall be made not later than 4:00 P.M.
local time on each Payment Date at c/x Xxxxxx Brothers, Inc., 3 World Financial
Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, in lawful money of the
United States of America by check or by wire transfer in immediately available
funds. Funds received after 4:00 P.M. may, at the election of the Lender, be
treated as received on the next succeeding Business Day. All payments received
by the Lender shall be applied first to the payment of principal and the
balance to the payment of accrued interest.
The Partnership promises to pay to the order of Lender on or before the 60th
day (or the next succeeding Business Day) after the end of each calendar
quarter commencing March 31, 1997, a mandatory prepayment of principal on this
Note in an amount equal to the Cash Sweep Payment Amount (as hereinafter
defined) for such date. For purposes of this Note, the "Cash Sweep Payment
Amount" for each date that such a payment is due shall be an amount equal to
90% of the aggregate Free Cash (as hereinafter defined) of the Partnership as
of the last day of the immediately preceding calendar quarter of the
Partnership. For purposes of this Note, "Free Cash" shall mean the amount
(provided such amount is greater than zero) equal to the Net Operating Income
of the Partnership minus the scheduled principal installments paid on any Debt
permitted by Section 9(c) of the Credit Agreement for the immediately preceding
calendar quarter of the Partnership. "Net Operating Income" shall mean Total
(including Other Income) minus Operating Expenses and General Administrative
Expenses minus capital required by future operations as determined by the
general partner of the Partnership (but not to exceed $300,000) plus
depreciation and amortization taken. The following capitalized terms used in
this Note shall have the meanings hereafter ascribed to them: "Total Revenue"
shall mean for any period of time, all cash actually received by the
Partnership in connection with the management and operation of the Barges,
including, without limitation, all rents and fees from the rental of the
Barges; "Other Income" shall mean for any period of time, all cash actually
received by the Partnership, other than total revenue as defined, including,
without limitation, reimbursement or refunds, interest and other receipts
incidental to operating the Partnership; "Operating Expenses" shall mean the
total amount of all costs and expenses actually paid in cash during such time
period by the Partnershi p (or by the property manager on behalf of the
Partnership) for the management, maintenance, repair, insurance or operation of
the Barges, exclusive of expenses for depreciation and amortization; and
"General Administrative Expenses" shall mean the total amount of all costs and
expenses actually paid in cash during such time period by the Partnership such
as but not limited to audit/accounting fees, legal fees, transfer agent fees,
printing and postage fees, out of pocket costs and any other cost or expenses
paid in connection with the management and administration of the Partnership.
All mandatory prepayments of principal made as required under this paragraph
shall be applied to the principal balance of this Note and shall not be subject
to any prepayment fees.
Except as otherwise defined herein, all capitalized terms used and not
otherwise defined in this Note shall have the meanings ascribed to them in that
certain Credit Agreement dated as of December 9, 1981, between the Partnership
and the Original Holder (in its capacities both as lender and as trustee), as
amended by that certain Amendment Agreement dated June 30, 1983, between the
Partnership and the Original Holder, as amended and restated by that certain
First Amended and Restated Credit Agreement dated as of the date hereof between
the Partnership and the Lender, and as the same may from time to time be
further amended, modified, extended or renewed (the "Credit Agreement").
Notwithstanding anything to the contrary in this Note, the Security Documents
or the Credit Agreement, neither the Lender nor the successors or assigns of
the Lender shall have any claim, remedy or right to proceed against the
Partnership, any limited partner of the Partnership, the general partner of the
Partnership in its individual corporate capacity, or any incorporator or any
past, present or future subscriber to the capital stock of, or stockholder,
officer or director of the said general partner, for the payment of any
deficiency or any other sum owing on account of the indebtedness evidenced by
this Note from any source other than the Barges and the collateral securing
this Note under the Credit Agreement and the Security Documents; and the
Lender, by acceptance hereof, waives and releases any personal liability of the
Partnership, any limited partner of the Partnership, the general partner of the
Partnership in its individual corporate capacity and any incorporator or t,
present or future subscriber to the capital stock of, or stockholder, officer
or director of the said general partner, for and on account of such
indebtedness or such liability, and agrees to look solely to the said Barges
and the collateral security for the satisfaction of such liability; provided,
however, nothing herein contained shall limit, restrict or impair the rights of
the Lender to accelerate the maturity of this Note upon a default under the
Credit Agreement, to bring suit and obtain a judgment against the Partnership
on this Note, to exercise all rights and remedies provided under the Credit
Agreement (including, without limitation, the rights granted pursuant to
Section 12(b) therein) and the Security Documents or otherwise realize upon the
Barges and the collateral securing this Note.
This Note is a "Note" referred to in, and is entitled to the benefits of, said
Credit Agreement, which Credit Agreement contains provisions, among others, for
the acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of the principal hereof prior to
maturity upon the terms and conditions therein specified. This Note is secured
by the Security Documents.
The Partnership hereby waives presentment, demand, notice of dishonor, protest
and all other demands and notices whatsoever in connection with delivery,
acceptance, performance and enforcement of this Note.
The Partnership shall pay all costs and expenses, including reasonable
attorneys' fees, incurred by the Lender in enforcing the obligations of the
Partnership hereunder and in the collection of this Note.
This Note shall be governed by and construed in accordance with the internal
laws of the State of New York.
If any provision of this Note, the Credit Agreement or of any other instrument
between the Partnership and the Lender shall be determined by judicial or
governmental authority to permit the collection of or to require payment of any
amount of interest in excess of the maximum amount permitted by applicable
laws, then, notwithstanding any provision hereof to the contrary, this Note and
all charges or payments made in connection herewith, shall be held subject to
reduction or rebate, as the case may be, to the maximum amount permitted under
said applicable laws.
The Partnership shall have the right, at its option, to prepay this
Note in whole or in part from time to time, without premium or penalty. Each
partial prepayment shall be in the aggregate principal amount of $10,000 or an
integral multiple thereof. Any partial prepayments made by the Partnership
shall be applied first to the unpaid principal amount of this Note and then to
accrued and unpaid interest. The Lender shall be entitled to receive written
or telegraphic notice of each prepayment at least 5 Business Days prior
thereto, which notice shall specify the aggregate principal amount of this Note
to be prepaid on the prepayment date. Notice of prepayment having been given
by the Partnership as aforesaid, the principal amount of this Note specified in
such notice, together with interest accrued and unpaid on the amount of such
prepayment to the date of prepayment, shall be due and payable on such
prepayment date. This Note shall become effective only upon its execution b
parties to this Note.
This Note has been executed as of the day and year first above written.
SEI II L.P., a New York Limited Partnership
ATTEST: By: SEI II Equipment, Inc., General Partner,
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, Vice President
Accepted this 3rd day of January, 1997 by
BUTTONWOOD LEASING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, President
SCHEDULE
to First Amended and Restated Credit Note
dated as of January 3, 1997
of SEI II L.P.
to Buttonwood Leasing Corporation
PAYMENTS ON ACCOUNT OF PRINCIPAL
Amount of Unpaid Principal Notation
Principal Paid Balance Made by
