AMENDED, RESTATED AND CONSOLIDATED PROMISSORY NOTE
$425,000,000 December 13, 1999
New York, New York
This Amended, Restated and Consolidated Promissory Note, dated as of
December 13, 1999, by 1290 PARTNERS, L.P., a Delaware limited partnership (the
"Borrower"), to GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation
(the "Lender").
W I T N E S S E T H :
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X. Xxxxxx is the present owner and holder of those certain bonds and
promissory notes described on Exhibit A attached hereto and made a part hereof
(collectively, the "Existing Notes"), which Existing Notes evidence an
indebtedness of Borrower to Lender in the outstanding principal amount of
$425,000,000.
X. Xxxxxxxx and Xxxxxx have agreed in the manner hereinafter set forth
to (i) combine and consolidate the Existing Notes and the respective
indebtednesses evidenced thereby and (ii) amend, modify and restate in their
entirety the terms and provisions of the Existing Notes, as so combined and
consolidated, on the terms and conditions hereinafter set forth.
C. Borrower intends these Recitals to be a material part of this Note.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
I. The Existing Notes and the respective indebtednesses evidenced
thereby are each hereby combined and consolidated so that together they shall
constitute in law but one indebtedness in the principal sum of $425,000,000,
together with interest thereon as hereinafter provided, and the terms,
covenants, conditions and provisions of the Existing Notes, as so combined and
consolidated, are hereby modified, amended and restated in their entirety so
that henceforth the terms, covenants, conditions and provisions of the Existing
Notes shall read and be as set forth in this Note and Xxxxxxxx agrees to comply
with and be subject to all of the terms, covenants and conditions of this Note.
II. The parties hereto certify that this Note evidences the same
indebtedness evidenced by the Existing Notes and evidences no further or other
indebtedness or obligation. Neither this Note nor anything contained herein
shall be construed as a novation of Xxxxxxxx's indebtedness to Lender or of the
Existing Notes, which shall remain in full force and effect as hereby
consolidated, confirmed, modified, restated and superseded.
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III. This Note is an extension and continuation of the existing
indebtedness evidenced by the Existing Notes and is issued in replacement of and
substitution for the Existing Notes.
IV. The Existing Notes, as consolidated, modified and restated in their
entirety pursuant to this Note, and the obligations of Borrower thereunder, are
hereby ratified and confirmed, and shall remain in full force and effect until
the full performance and satisfaction of all obligations of Borrower hereunder.
NOW, THEREFORE, Xxxxxxxx and Xxxxxx agree as follows:
Borrower hereby promises to pay to the Lender, for the account of its
respective Applicable Lending Offices provided for by the Agreement referred to
below, at the principal office of General Electric Capital Corporation, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, the principal sum of Four Hundred Twenty-Five
Million Dollars ($425,000,000) (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Loans made by the Lender to the
Borrower under the Agreement), in lawful money of the United States of America
and in immediately available funds, on the dates and in the principal amounts
provided in the Agreement, and to pay interest on the unpaid principal amount of
each such Loan, at such office, in like money and funds, for the period
commencing on the date of such Loan until such Loan shall be paid in full, at
the rates per annum and on the dates provided in the Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower to make a payment when due of any
amount owing under the Agreement or hereunder in respect of the Loans made by
the Lender.
This Note is one of the Notes referred to in the Loan Agreement dated
as of December 13, 1999 (as modified and supplemented and in effect from time to
time, the "Agreement") between the Borrower, the lenders party thereto
(including the Lender) and General Electric Capital Corporation, as
Administrative Agent, and evidences Loans made by the Lender thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Agreement.
The Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.
Except as permitted by Sections 11.9 and 11.24 of the Agreement, this
Note may not be assigned by the Lender to any other Person.
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Notwithstanding anything to the contrary in this Note, Xxxxxxxx's
liability under this Note is subject to the limitations on liability provisions
of Article 12 of the Loan Agreement, the terms and provisions of which are
incorporated herein by reference.
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This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
BORROWER: 1290 PARTNERS, L.P., a Delaware limited partnership
By: 1290 GP Corp., a Delaware corporation, its
general partner
By:/s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
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