Exhibit 10.1 EXECUTION COPY
FIFTH AMENDMENT TO AMENDED AND RESTATED
FINANCING AND SECURITY AGREEMENT
FIFTH AMENDMENT TO AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
("Fifth Amendment") dated as of November 6, 1998 among XXXXXXX-XXXXXXX, INC.
(the "Borrower"), THE CIT GROUP/BUSINESS CREDIT, INC. ("CITBC"), BNY FINANCIAL
CORPORATION ("BNYFC") (each of CITBC and BNYFC referred to as a "Lender" and
collectively, the "Lenders") and THE CIT GROUP/BUSINESS CREDIT, INC., as agent
for the Lenders (in such capacity, together with its successors in such
capacity, the "Lenders Agent").
PRELIMINARY STATEMENT. Reference is made to the Amended and Restated
Financing and Security Agreement dated as of January 17, 1997 among the
Borrower, CITBC, each other lender which may thereafter execute and deliver an
instrument of assignment under the Financing Agreement pursuant to Section 9(18)
and the Lenders Agent, as amended by a First Amendment to Amended and Restated
Financing and Security Agreement dated as of April 1, 1997, as amended by a
Second Amendment to Amended and Restated Financing and Security Agreement dated
as of September 17, 1997, as amended by a Third Amendment to Amended and
Restated Financing and Security Agreement dated as of December 29, 1997 and as
amended by the Fourth Amendment to Amended and Restated Financing and Security
Agreement dated as of March 11, 1998 (the "Fourth Amendment") (as it may be
further amended, supplemented or modified from time to time, the "Financing
Agreement"). Any term used in this Fifth Amendment and not otherwise defined in
this Fifth Amendment shall have the meaning assigned to such term in the
Financing Agreement.
The parties hereto have agreed to amend certain terms and provisions of the
Financing Agreement as hereinafter set forth.
SECTION 1. Amendments to Financing Agreement. The Financing Agreement is,
subject to the satisfaction of the conditions precedent set forth in Section 3
hereof, hereby amended as follows:
(a) The following exhibit is to be added in its proper sequential
order to the list of Exhibits:
Exhibit A2 - Form of Additional Term Loan Promissory Note
(b) The following definitions shall be added in their proper
alphabetical order:
"'Additional Term Loan' shall have the meaning specified in Section
4(4)."
"'Additional Term Loan Guaranty Agreement' shall mean the guaranty
agreement dated as of November 6, 1998 by Xx. Xxxxxxx X. Xxxxxxx, Xx.
in favor of the Lenders."
"'Additional Term Loan Promissory Note' shall mean the note, in the
form of Exhibit A2 attached hereto, delivered by the Borrower to each
Lender to evidence each such Lender's respective portion of the
Additional Term Loan pursuant to, and repayable in accordance with,
the provisions of Section 4 of this Financing Agreement."
"'Fifth Amendment Fee' shall mean a fee equal to Seventy-Five Thousand
Dollars ($75,000)."
"'Fourth Closing Date' shall mean November 6,1998."
"'Term Loan Final Payment Date' shall mean the date upon which the
Borrower repays all outstanding principal and interest on the Term
Loan."
"'Term Loans' shall have the meaning specified in Section 4(4)."
(c) The definition of "Consolidated Fixed Charge Coverage Ratio" is
amended by adding "s" to the end of "Term Loan" in the sixth line.
(d) The definition of "Default Rate of Interest" is amended by
deleting "four percent (4%)" in the second and third lines and by replacing
it with "four and one-quarter percent (4.25%)".
(e) The definition of "Early Termination Fee" is amended by deleting
"Third" before "Closing Date" in the fifth, sixth, eighth, ninth and
eleventh lines and replacing it with "Fourth".
(f) The definition of "Final Maturity Date" is amended in full to read
as follows:
"'Final Maturity Date' means October 1, 2001."
(g) The definition of "Loan Documents" is amended by adding "the
Additional Term Loan Promissory Note, the Additional Term Loan Guaranty
Agreement," after "Promissory Note," in the fifth line.
(h) The definition of "Mandatory Prepayment" is amended by adding "s"
to the end of "Term Loan" in the fifth line.
(i) The definition of "Monthly Date" is amended by deleting "last"
before "business day" in the first line and replacing it with "first".
(j) The definition of "Revolving Line of Credit" is amended in full to
read as follows:
"'Revolving Line of Credit' shall mean the commitment of the Lenders
to make loans and advances, pursuant to Section 3 of this Financing
Agreement, to the Borrower in a maximum outstanding principal amount
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of (i) for all periods prior to November 2, 1998, $30,000,000 and (ii)
from November 2, 1998 and thereafter, $31,500,000."
(k) The following definition of "the Term Loan" shall be deleted from
the Fourth Amendment:
In each of the Loan Documents each of "any Term Loan", "any of
the Term Loans", "such Term Loan", "the Term Loans" and "Term Loans"
is changed to "the Term Loan".
(l) The definition of the "Term Loan Notes" is amended in its entirety
as follows:
"'Term Loan Notes' shall mean the Term Loan Promissory Note and the
Additional Term Loan Promissory Note."
(m) Section 3, Revolving Loans, is amended by adding "(i) for all
periods prior to November 2, 1998," after "(a)" in the twelfth line and by
adding "and (ii) from November 2, 1998 and thereafter $31,500,000," after
"$30,000,000" in the twelfth line.
(n) Sections 4(4) through 4(7), Term Loans, are amended in full to
read as follows:
"4. The Lenders and the Borrower acknowledge that in excess of
Two Million Five Hundred Thousand Dollars ($2,500,000) of the
Revolving Loans made pursuant to and as defined in this Financing
Agreement remains outstanding and the Lenders agree on the terms and
conditions set forth in the Fifth Amendment, to make a term loan (the
"Additional Term Loan") to the Borrower on the Fourth Closing Date in
the principal amount of Two Million Five Hundred Thousand Dollars
($2,500,000). Amounts prepaid on the Additional Term Loan cannot be
reborrowed. The Term Loan and the Additional Term Loan are
collectively referred to as the "Term Loans".
5. The Borrower hereby agrees to execute and deliver to each
Lender the Additional Term Loan Promissory Note, in the form of
Exhibit A2 attached hereto, to evidence the Additional Term Loan made
by such Lender on the Fourth Closing Date.
6. The principal amount of the Additional Term Loan shall be
repaid to the Lenders by the Borrower in monthly installments with the
first installment due on the Term Loan Final Payment Date and equal to
$200,000 minus the payment made on the Term Loan Final Payment Date
with respect to the Term Loan, and subsequent installments, each in
the amount of $200,000, to be due on each Monthly Date thereafter to
and including September 1, 2001 and with one (1) final installment of
the remaining principal amount outstanding, plus all other amounts
having
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accrued and outstanding, payable on October 1, 2001."
7. Mandatory Prepayments shall be made with respect to the Term
Loans within 90 days after the end of each fiscal year of the
Borrower, commencing with the fiscal year ended July 31, 1998, in an
amount equal to fifty percent (50%) of Excess Cash Flow of the
Borrower for such fiscal year. The proceeds of all of these
prepayments shall be applied first to the Term Loan's scheduled
installments of principal in the inverse order of maturity and then to
the Additional Term Loan's scheduled installments of principal in the
inverse order of maturity."
(o) The following paragraphs are to be added after paragraph 7 in
Section 4:
"8. The Borrower may prepay any or all of the Term Loans in whole
or in part at any time, at its option; provided, however, that on each
such prepayment, the Borrower shall pay accrued interest on the
principal so prepaid to the date of such prepayment. Each optional
prepayment made pursuant to this paragraph 8 shall be applied first to
the last installment under the Additional Term Loan, second to the
last maturing installment(s) of principal on the Term Loan and then to
the remaining maturing installment(s) of principal on the Additional
Term Loan.
9. In the event this Financing Agreement and the Revolving Line
of Credit are terminated by either the Lenders or the Borrower for any
reason whatsoever, the Term Loans shall become due and payable on the
effective date of such termination, notwithstanding any provision to
the contrary in the Term Loan Notes.
10. The Borrower hereby authorizes Lenders Agent to charge its
Revolving Loan account with the amount of all amounts due under this
Section 4 as such amounts become due. The Borrower confirms that any
charges which Lenders Agent may so make to its account as herein
provided will be made as an accommodation to the Borrower and solely
at Lenders Agent's discretion."
(p) Section 7(16), Application of Proceeds, is amended by adding "The
proceeds of the Additional Term Loan made on the Fourth Closing Date will
be used to repay the outstanding Revolving Loans." before "The other
proceeds" in the nineteenth line.
(q) Section 8(5)(b)(I), Insurance, is amended by adding "s" to the end
of "Term Loan" in the third and fourth lines.
(r) Section 8(10), Minimum Consolidated Net Worth, is amended in full
to read as follows:
"10. Minimum Consolidated Net Worth. The Borrower and its
Consolidated Subsidiaries shall have as of each date specified below a
Consolidated Net Worth of not less than the amount specified below for
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such date:
Date Amount
---- ------
October 31, 1998 $16,000,000
January 31, 1999 $16,000,000
April 30, 1999 $19,000,000
July 31, 1999 $19,000,000
October 31, 1999 $19,000,000
January 31, 2000 $20,000,000
April 30, 2000 $21,000,000
July 31, 2000 and each Quarterly $22,000,000
Date thereafter"
(s) Section 8(11), Consolidated Interest Coverage Ratio, is amended in
full to read as follows:
"11. Consolidated Interest Coverage Ratio. The Borrower and its
Consolidated Subsidiaries will have for each period specified below a
Consolidated Interest Coverage Ratio of not less than the ratio
specified below for such period:
Period Ratio
------ -----
For the one quarter ended October 0.45 to 1.00
31, 1998
For the two quarters (taken 1.10 to 1.00
together as a whole) ended
January 31, 1999
For the three quarters (taken 2.00 to 1.00
together as a whole) ended April
30, 1999
For the four quarters (taken 2.20 to 1.00
together as a whole) ended July
31, 1999
For the four quarters (taken 2.40 to 1.00
together as a whole) ended
October 31, 1999
For the four quarters (taken 2.60 to 1.00
together as a whole) ended
January 31, 2000
For the four quarters (taken 2.80 to 1.00
together as a whole) ended April
30, 2000
For the four quarters (taken 3.20 to 1.00
together as a whole) ended on
each of July 31, 2000 and each
Quarterly Date thereafter"
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(t) Section 8(12), Consolidated Total Liabilities to Consolidated Net
Worth, is amended in full to read as follows:
"12. Consolidated Total Liabilities to Consolidated Net Worth.
The Borrower and its Consolidated Subsidiaries will not as of any date
specified below have a ratio of Consolidated Total Liabilities to
Consolidated Net Worth of greater than the ratio specified below for
such date:
Date Ratio
---- -----
October 31, 1998 6.00 to 1.00
January 31, 1999 6.00 to 1.00
April 30, 1999 5.00 to 1.00
July 31, 1999 5.00 to 1.00
October 31, 1999 5.00 to 1.00
January 31, 2000 5.00 to 1.00
April 30, 2000 5.00 to 1.00
July 31, 2000 and each Quarterly 4.00 to 1.00
Date thereafter"
(u) Section 8(13), Consolidated Current Ratio, is amended in full to
read as follows:
"13. Consolidated Current Ratio. The Borrower and its
Consolidated Subsidiaries will have on each date specified below a
ratio of Consolidated Current Assets to Consolidated Current
Liabilities of not less than the ratio specified below for such date:
Date Ratio
---- -----
October 31, 1998 1.20 to 1.00
January 31, 1999 1.20 to 1.00
April 30, 1999 1.20 to 1.00
July 31, 1999 1.30 to 1.00
October 31, 1999 1.30 to 1.00
January 31, 2000 1.30 to 1.00
April 30, 2000 1.30 to 1.00
July 31, 2000 and each Quarterly 1.00 to 1.00
Date thereafter"
(v) Section 8(14), Consolidated Fixed Charge Coverage Ratio, is
amended in full to read as follows:
"14. Consolidated Fixed Charge Coverage Ratio. The Borrower and
its Consolidated Subsidiaries shall maintain at the end of each period
a Consolidated Fixed Charge Coverage Ratio of not less than the
following:
Period Ratio
------ -----
For the one quarter ended October .45 to 1.00
31, 1998
For the two quarters (taken .65 to 1.00
together as a whole) ended
January 31, 1999
For the three quarters (taken .85 to 1.00
together as a whole) ended April
30, 1999
For the four quarters (taken .90 to 1.00
together as a whole) ended July
31, 1999
For the four quarters (taken 1.00 to 1.00
together as a whole) ended
October 31, 1999
For the four quarters (taken 1.00 to 1.00
together as a whole) ended
January 31, 2000
For the four quarters (taken 1.00 to 1.00
together as a whole) ended April
30, 2000
For the four quarters (taken 1.10 to 1.00
together as a whole) ended on
each of July 31, 2000 and each
Quarterly Date thereafter"
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(w) Section 8(15), Consolidated EBITDA, is amended in full to read as
follows:
"15. Consolidated EBITDA. The Borrower and its Consolidated
Subsidiaries shall have for each period specified below an amount of
Consolidated EBITDA of not less than the amount specified below for
such period:
Period Amount
------ ------
For the one quarter ended October $450,000
31, 1998
For the two quarters (taken $2,000,000
together as a whole) ended
January 31, 1999
For the three quarters (taken $6,500,000
together as a whole) ended April
30, 1999
For the four quarters (taken $7,000,000
together as a whole) ended July
31, 1999
For the four quarters (taken $8,000,000
together as a whole) ended
October 31, 1999
For the four quarters (taken $9,500,000
together as a whole) ended
January 31, 2000
For the four quarters (taken $11,000,000
together as a whole) ended April
30, 2000
For the four quarters (taken $12,000,000
together as a whole) ended on
each of July 31, 2000 and each
Quarterly Date thereafter"
(x) Section 9(1), Interest on Revolving Loans, is amended by adding
"and one-quarter" after "one" in the fourth, sixth and twentieth lines, by
deleting "(1.0%)" in the fourth line and replacing it with "(1.25%)", by
deleting "(3.0%)" in the sixth line and replacing it with "(3.25%)" and by
deleting "(1.00%)" in the twentieth line and replacing it with "(1.25%)".
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(y) Section 9(2), Interest on Term Loan, is amended by adding "s" at
the end of "Term Loan" in the heading, by deleting "one-quarter" in the
fourth, sixth and tenth lines and replacing it with "one-half", by deleting
"(1.25%)" in the fourth and tenth lines and replacing it with "(1.50%)" and
by deleting "(3.25%)" in the seventh line and replacing it with "(3.50%)".
(z) Section 9(3)(a), Substituted Interest Rate at Option of Borrower,
is amended by deleting "(3%)" in the ninth line and replacing it with
"(3.25%)", by deleting "(3.25%)" in the tenth line and replacing it with
"(3.50%)", by deleting "(1.0%)" in the eighteenth line and replacing it
with "(1.25%)" and by deleting "(1.25%)" in the nineteenth line and
replacing it with "(1.50%)".
(aa) Section 9(3)(c), Substituted Interest Rate at Option of Borrower,
is amended by adding "and one-quarter" after "the Chase Bank Rate plus one"
in the seventh, eleventh and sixteenth lines, by deleting "(1.0%)" in the
seventh, eleventh and sixteenth lines and replacing it with "(1.25%)", by
deleting "one-quarter" in the seventh, eleventh and sixteenth lines and
replacing it with "one-half" and by deleting "(1.25%)" in the eighth,
twelfth and seventeenth lines and replacing it with "(1.50%)".
(bb) Section 11(1)(j), Events of Default and Remedies, is amended in
full to read as follows:
"(j) without the prior written consent of all the Lenders, the
Borrower shall (x) amend or modify the Subordinated Debt, except
pursuant to the letter agreement dated November 5, 1998 by Borrower to
Banc One Capital Partners Corporation and PNC Capital Corp. or (y)
make any payment on account of the Subordinated Debt except as
permitted herein or pursuant to the letter agreement dated November 5,
1998 by Borrower to Banc One Capital Partners Corporation and PNC
Capital Corp."
(cc) Section 11(1), Events of Default and Remedies, is amended by
adding the following paragraph after the last paragraph:
"(m) if within 25 days of the Fourth Closing Date, the parties to the
Investment Agreement dated May 25, 1994, as amended, among Borrower,
Allied Investment Corporation, Allied Investment Corporation II,
Allied Capital Corporation II, Banc One Capital Partners Corporation
and PNC Capital Corp., Xxxxxxx X. Xxxxxxx, Xx. and Xxxx X. Xxxxx, have
not executed documents implementing the terms of the letter agreement
dated November 5, 1998 by Borrower to Banc One Capital Partners
Corporation and PNC Capital Corp. and delivered such documents to the
Lender's Agent."
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SECTION 2. Revolving Loans Promissory Notes. The Second Amended and
Restated Revolving Loans Promissory Note dated April 1, 1997 made by CITBC for
the benefit of the Borrower is, effective as of the date hereof and subject to
the satisfaction of the conditions precedent set forth in Section 3 hereof,
hereby amended by deleting "$18,750,000" in the forepart and replacing it with
"$19,687,500" and by deleting "Eighteen Million Seven Hundred Fifty Thousand
Dollars ($18,750,000)" in the ninth line and replacing it with "Nineteen Million
Six Hundred Eighty Seven Thousand Five Hundred Dollars ($19,687,500)". The
Revolving Loans Promissory Note dated April 1, 1997 made by BNYFC for the
benefit of the Borrower is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, hereby
amended by deleting "$11,250,000" in the forepart and replacing it with
"$11,812,500" and by deleting "Eleven Million Two Hundred Fifty Thousand Dollars
($11,250,000)" in the ninth line and replacing it with "Eleven Million Eight
Hundred Twelve Thousand Five Hundred Dollars ($11,812,500)".
The Borrower hereby authorizes each Lender to annotate their respective
Revolving Loans Promissory Note to reflect the above stated change in the
principal amount.
SECTION 3. Conditions of Effectiveness. This Fifth Amendment shall become
effective as of the date on which each of the following conditions has been
fulfilled:
(a) Fifth Amendment. The Borrower, CITBC, BNYFC, and the Lenders Agent
shall each have executed and delivered this Fifth Amendment;
(b) The Additional Term Loan Promissory Notes. Each of CITBC and BNYFC
shall have received their respective Additional Term Loan Promissory Note
payable to it and each duly executed and delivered by the Borrower with all
blanks appropriately filled in.
(c) Fifth Amendment Fee. Payment in full by the Borrower of the Fifth
Amendment Fee.
(d) Board Resolution. Lenders Agent shall have received a copy of the
resolutions of the Board of Directors of the Borrower authorizing the
execution, delivery and performance of (i) this Fifth Amendment and (ii)
any related agreements, in each case certified by the Secretary or
Assistant Secretary of such Person as of the date hereof, together with a
certificate of the Secretary or Assistant Secretary of such Person as to
the incumbency and signature of the officers of such Person executing this
Fifth Amendment and any certificate or other documents to be delivered by
it pursuant hereto, together with evidence of the incumbency of such
Secretary or Assistant Secretary.
(e) Opinions. The Borrower shall have delivered to Lenders Agent a
favorable opinion of Xxxx Xxxxx & Xxxx satisfactory to Lenders and their
special counsel dated the Fourth Closing Date.
(f) Fees and Expenses. On the Fourth Closing Date, subject to the
credit presently available to the Borrower, the Borrower shall have
reimbursed Lenders and Lenders Agent for all Out-of-Pocket Expenses for
which a request for payment shall have been made at or prior to the Fourth
Closing Date.
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(g) Officer's Certificate. The following statements shall be true and
the Lenders Agent shall have received a certificate signed by a duly
authorized officer of the Borrower dated the date hereof stating that,
after giving effect to this Fifth Amendment and the transactions
contemplated hereby:
(i) The representations and warranties contained in each of the
Loan Documents are true and correct on and as of the date hereof as
though made on and as of such date; and
(ii) no Default or Event of Default has occurred and is
continuing;
(h) Legal Bills. Xxxxx Xxxxxxxxxx LLP has been paid in full for all
past due legal fees, costs and expenses and for all fees, costs and
expenses in connection with this Fifth Amendment.
(i) Additional Term Loan Guaranty Agreement. The Borrower shall have
delivered to Lenders Agent the Additional Term Loan Guaranty Agreement,
duly executed by Xx. Xxxxxxx Xxxxxxx.
(j) Other Documents. The Bank shall have received such other
approvals, opinions or documents as the Bank may reasonably request.
SECTION 4. Reference to and Effect on the Loan Documents.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof each reference in the Financing Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import, and each reference
in the other Loan Documents to the Financing Agreement, shall mean and be a
reference to the Financing Agreement as amended hereby.
(b) The execution, delivery and effectiveness of this Fifth Amendment
shall not operate as a waiver of any right, power or remedy of the Bank
under any of the Loan Documents, nor constitute a waiver of any provision
of any of the Loan Documents, and, except as specifically provided herein,
the Financing Agreement and each other Loan Document shall remain in full
force and effect and are hereby ratified and confirmed.
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SECTION 5. Governing Law. This Fifth Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6. Headings. Section headings in this Fifth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Fifth Amendment for any other purpose.
SECTION 7. Counterparts. This Fifth Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Fifth Amendment by signing any
such counterpart.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to
be duly executed as of the day and year first above written.
XXXXXXX-XXXXXXX, INC.,
as Borrower
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Lender
By /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: V.P.
BNY FINANCIAL CORPORATION,
as Lender
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: VP
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Lenders Agent
By /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: V.P.
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Exhibit A2
ADDITIONAL TERM LOAN PROMISSORY NOTE
$______________ New York, New York
___________ __, 1998
FOR VALUE RECEIVED, the undersigned, XxXxxxx-Xxxxxxx, Inc., a Delaware
corporation (herein the "Borrower"), promises to pay to the order of The CIT
Group/Business Credit, Inc. ("CITBC"), at CITBC offices located at 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United States
of America and in immediately available funds, the principal amount of
_____________ Million Dollars ($_____________) in monthly installments with the
first installment due on the Term Loan Final Payment Date and equal to $200,000
minus the payment made on the Term Loan Final Payment Date with respect to the
Term Loan, and subsequent installments, each in the amount of $200,000, to be
due on each Monthly Date thereafter to and including September 1, 2001, and with
one (1) final installment of the remaining principal amount outstanding, plus
all other amounts having accrued and outstanding, payable on October 1, 2001.
The Borrower further agrees to pay interest at said office, in like money,
on the unpaid principal amount owing hereunder from time to time from the date
hereof on the date and at the rate specified in the Financing Agreement referred
to below. Any amount of principal hereof which is not paid when due, whether at
stated maturity, by acceleration, or otherwise, shall bear interest from the
date when due until said principal amount is paid in full, payable on demand at
a rate per annum equal at all times to the Default Rate of Interest.
If any payment on this Additional Term Loan Promissory Note (the "Note")
becomes due and payable on a day other than a business day, the maturity shall
be extended to the next succeeding business day, and with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension.
This Note is one of the Term Loan Promissory Notes referred to in the
Amended and Restated Financing Security Agreement, dated as of January 17, 1997,
between the Borrower and CITBC as amended by a First Amendment to Amended and
Restated Financing and Security Agreement dated as of April 1, 1997, as amended
by a Third Amendment to Amended and Restated Financing and Security Agreement
dated as of September 17, 1997, as amended by a Fourth Amendment to Amended and
Restated Financing and Security Agreement dated as of March 11, 1998 and amended
by a Fifth Amendment to Amended and Restated Financing and Security Agreement
dated as of November __, 1998 (as it may be amended, modified or supplemented
from time to time, the "Financing Agreement") and is subject to, the entitled
to, all provisions and benefits and is subject to optional and mandatory
prepayment, in whole or in part, as provided therein. Terms defined in the
Financing Agreement are used herein with their defined meanings unless otherwise
defined herein.
Upon the occurrence of any one or more of the Events of Default specified
in the Financing Agreement or upon termination of the Financing Agreement, all
amounts then remaining unpaid on this Note may become, or be declared to be
immediately due and payable, all as provided in the Financing Agreement.
This Note is secured by certain Loan Documents, including the Financing
Agreement, and is guaranteed as provided in the Financing Agreement, reference
to which is hereby made for a description of the Collateral and guarantees
provided for under such Loan Documents and the rights of CITBC with respect to
such Collateral and guarantees.
The Borrower hereby waives presentment, notice of dishonor, protest and any
other notice or formality with respect to this Additional Term Loan Promissory
Note.
THIS NOTE SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
XXXXXXX-XXXXXXX, INC.
By ______________________________
Name:
Title:
2
