Exhibit 10(v)
TERM PROMISSORY NOTE
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$12,600,000 New York, New York
September 18, 1998
FOR VALUE RECEIVED, CENTRAL SPRINKLER COMPANY, a Pennsylvania
corporation (the "Debtor"), hereby unconditionally promises to pay to the order
of CONGRESS FINANCIAL CORPORATION, a Delaware corporation (the "Payee"), at the
offices of Payee at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as the Payee or any holder hereof may from time to time
designate, the principal sum of TWELVE MILLION SIX HUNDRED THOUSAND DOLLARS
($12,600,000) in lawful money of the United States of America and in immediately
available funds, in forty-eight (48) consecutive monthly installments (or
earlier as hereinafter provided) on the first day of each month commencing
October 1, 1998 of which each installment shall be in the amount of TWO HUNDRED
SIXTY-TWO THOUSAND FIVE HUNDRED DOLLARS ($262,500).
Debtor hereby further promises to pay interest to the order of Payee on
the unpaid principal balance hereof at the Interest Rate. Such interest shall be
paid in like money at said office or place from the date hereof, commencing
October 1, 1998 and on the first day of each month thereafter until the
indebtedness evidenced by this Note is paid in full. Interest payable upon and
after an Event of Default or termination or non-renewal of the Loan Agreement
shall be payable upon demand.
For purposes hereof, (a) the term "Interest Rate" shall mean, as to
Prime Rate Loans, a percentage rate per annum equal to that of the Prime Rate,
and as to Eurodollar Rate Loans, a rate of one and three-quarters (1 3/4%)
percent per annum in excess of the Adjusted Eurodollar Rate; provided, that, at
Payee's option, the Interest Rate shall mean a rate of two (2%) percent per
annum in excess of the Prime Rate as to Prime Rate Loans and a rate of three and
three-quarters (3 3/4%) percent per annum in excess of the Adjusted Eurodollar
Rate as to Eurodollar Rate Loans upon and after an Event of Default and during
the continuation thereof and for so long as the same is continuing or
termination or non-renewal of the Loan Agreement, (b) the term "Prime Rate"
shall mean the rate from time to time publicly announced by First Union National
Bank, or its successors, as its prime rate, whether or not such announced rate
is the best rate available at such bank, (c) the term "Event of Default" shall
mean an Event of Default as such term is defined in the Loan Agreement, and (d)
the term "Loan Agreement" shall mean the Loan and Security Agreement, dated of
even date herewith, by and among Debtor, certain of its affiliates and Payee, as
the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced. Unless otherwise defined herein, all
capitalized terms used herein shall have the meaning assigned thereto in the
Loan Agreement.
The Interest Rate applicable to Prime Rate Loans payable hereunder
shall increase or decrease by an amount equal to each increase or decrease,
respectively, in the Prime Rate, effective on the first day of the month after
any change in the Prime Rate is announced. The increase or decrease shall be
based on the Prime Rate in effect on the last day of the month in which any such
change occurs. Interest shall be calculated on the basis of a three hundred
sixty (360) day year and actual days elapsed. In no event shall the interest
charged hereunder exceed the maximum permitted under the laws of the State of
New York or other applicable law.
This Note is issued pursuant to the terms and provisions of the Loan
Agreement to evidence the Term Loan by Payee to Debtor. This Note is secured by
the Collateral described in the Loan Agreement and all notes, guarantees,
security agreements and other agreements, documents and instrument now or at any
time hereafter executed and/or delivered by Debtor or any other party in
connection therewith (all of the foregoing, together with the Loan Agreement, as
the same now exist or may hereafter be amended, modified, supplemented, renewed,
extended, restated or replaced, being collectively referred to herein as the
"Financing Agreements"), and is entitled to all of the benefits and rights
thereof and of the other Financing Agreements. At the time any payment is due
hereunder, at its option, Xxxxx may charge the amount thereof to any account of
Debtor maintained by Xxxxx.
If any payment of principal or interest is not made within three (3)
days of the date when due hereunder, or if any other Event of Default shall
occur for any reason, or if the Loan Agreement shall be terminated or not
renewed for any reason whatsoever, then and in any such event, in addition to
all rights and remedies of Payee under the Financing Agreements, applicable law
or otherwise, all such rights and remedies being cumulative, not exclusive and
enforceable alternatively, successively and concurrently, Payee may, at its
option, declare any or all of Debtor's obligations, liabilities and indebtedness
owing to Payee under the Loan Agreement and the other Financing Agreements (the
"Obligations"), including, without limitation, all amounts owing under this
Note, to be due and payable, whereupon the then unpaid balance hereof, together
with all interest accrued thereon, shall forthwith become due and payable,
together with interest accruing thereafter at the then applicable Interest Rate
stated above until the indebtedness evidenced by this Note is paid in full, plus
the costs and expenses of collection hereof, including, but not limited to,
attorneys' fees and legal expenses.
Debtor (i) waives diligence, demand, presentment, protest and notice of
any kind, (ii) agrees that it will not be necessary for Payee to first institute
suit in order to enforce payment of this Note and (iii) consents to any one or
more extensions or postponements of time of payment, release, surrender or
substitution of collateral security, or forbearance or other indulgence, without
notice or consent. The pleading of any statute of limitations as a defense to
any demand against Debtor is expressly hereby waived by Debtor. Upon any Event
of Default or termination or non-renewal of the Loan Agreement, Payee shall have
the right, but not the obligation to setoff against this Note all money owed by
Payee to Debtor.
Payee shall not be required to resort to any Collateral for payment,
but may proceed against Debtor and any guarantors or endorsers hereof in such
order and manner as Payee may choose. None of the rights of Payee shall be
waived or diminished by any failure or delay in the exercise thereof.
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The validity, interpretation and enforcement of this Note and the other
Financing Agreements and any dispute arising in connection herewith or therewith
shall be governed by the internal laws of the State of New York (without giving
effect to principles of conflicts of law).
Debtor irrevocably consents and submits to the non-exclusive
jurisdiction of the Supreme Court of the State of New York in New York County
and the United States District Court for the Southern District of New York and
waives any objection based on venue or forum non conveniens with respect to any
action instituted therein arising under this Note or any of the other Financing
Agreements or in any way connection with or related or incidental to the
dealings of Debtor and Payee in respect of this Note or any of the other
Financing Agreements or the transactions related hereto or thereto, in each case
whether now existing or hereafter arising, and whether in contract, tort, equity
or otherwise, and agrees that any dispute arising out of the relationship
between Debtor and Payee or the conduct of such persons in connection with this
Note or otherwise shall be heard only in the courts described above (except that
Payee shall have the right to bring any action or proceeding against Debtor or
its property in the courts of any other jurisdiction which Payee deems necessary
or appropriate in order to realize on the Collateral or to otherwise enforce its
rights against Debtor or its property).
Debtor hereby waives personal service of any and all process upon it
and consents that all such service of process may be made by certified mail
(return receipt requested) directed to it and service so made shall be deemed to
be completed five (5) days after the same shall have been so deposited in the
U.S. mails, or, at Payee's option, by service upon Debtor in any other manner
provided under the rules of any such courts. Within thirty (30) days after such
service, Debtor shall appear in answer to such process, failing which Debtor
shall be deemed in default and judgment may be entered by Payee against Debtor
for the amount of the claim and other relief requested.
DEBTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS NOTE OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS BETWEEN DEBTOR AND PAYEE
IN RESPECT OF THIS NOTE OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. DEBTOR
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL
BE DECIDED BY COURT TRIAL WITHOUT A JURY.
The execution and delivery of this Note has been authorized by the
Board of Directors and by any necessary vote or consent of the stockholders of
Debtor. Debtor hereby authorizes Xxxxx to complete this Note in any particulars
according to the terms of the loan evidenced hereby.
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This Note shall be binding upon the successors and assigns of Debtor
and inure to the benefit of Xxxxx and its successors, endorsees and assigns.
Whenever used herein, the term "Debtor" shall be deemed to include its
successors and assigns and the term "Payee" shall be deemed to include its
successors, endorsees and assigns. If any term or provision of this Note shall
be held invalid, illegal or unenforceable, the validity of all other terms and
provisions hereof shall in no way be affected thereby.
CENTRAL SPRINKLER COMPANY
By: /s/ Xxxxxx X. Xxxxx
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Title: Executive Vice President
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