EXHIBIT 10.5(b)
AMENDED AND RESTATED TERM NOTE
$3,500,000 amended and restated as of December 12, 1997
FOR VALUE RECEIVED, the undersigned XXXXX TOWING CORPORATION, a New York
corporation (the "Borrower"), hereby promises to pay to the order of BANCBOSTON
LEASING INC. (the "Lender") at the Lender's Head Office (as defined in the Loan
Agreement referred to below):
(a) on or prior to the Maturity Date the principal amount of THREE MILLION
FIVE HUNDRED THOUSAND DOLLARS ($3,500,000) or, if less, the aggregate unpaid
principal amount of the Term Loan outstanding under the Amended and Restated
Term Loan Agreement, amended and restated as of December 12, 1997 (as amended
and in effect from time to time, the "Loan Agreement"), among the Borrower, the
Guarantors named therein, the Lender, and BancBoston Leasing Inc., as agent; and
(b) interest on the principal balance hereof from time to time outstanding
from the Closing Date through and including the Maturity Date at the times and
at the rates provided in the Loan Agreement.
This Note has been issued by the Borrower in accordance with the terms of
the Loan Agreement. This Note has been issued as an amendment and restatement
of, but does not evidence payment or satisfaction of, the April Term Note, dated
as of May 16, 1997, issued by Interlake Transportation, Inc. to the Lender. As
set forth in the Loan Agreement, the obligations of Interlake Transportation,
Inc. under such April Term Note have been assumed by the Borrower pursuant to
the Loan Agreement. The Lender and any holder hereof is entitled to the
benefits of the Loan Agreement, the Security Documents and the other Loan
Documents, and may enforce the agreements of the Borrower contained therein, and
any holder hereof may exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance with the respective
terms thereof. All capitalized terms used in this Note and not otherwise
defined herein shall have the same meanings herein as in the Loan Agreement.
This Note is guaranteed by the Guarantors pursuant to the terms of the
Guaranty, of even date herewith, executed by the Guarantors in favor of the
Lender.
The Borrower irrevocably authorizes the Lender to make or cause to be made,
at the time of the amendment and restatement of this Note or at the time of
receipt of any payment of principal of this Note, an appropriate notation on the
grid attached to this Note, or the continuation of such grid, or any other
similar record, including computer records, reflecting the
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amendment and restatement of the Term Loan or (as the case may be) the receipt
of such payment. The outstanding amount of the Term Loan set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records, maintained by the Lender with respect to the
Term Loan shall be PRIMA FACIE evidence of the principal amount thereof owing
and unpaid to the Lender, but the failure to record, or any error in so
recording, any such amount on any such grid, continuation or other record shall
not limit or otherwise affect the obligation of the Borrower hereunder or under
the Loan Agreement to make payments of principal of and interest on this Note
when due.
The Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Loan Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon may
become or be declared due and payable in the manner and with the effect provided
in the Loan Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrower and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of the Collateral and any other collateral and
to the addition or release of any other party or person primarily or secondarily
liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF
SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN THE LOAN AGREEMENT. THE BORROWER
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
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This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the undersigned has caused this Amended and Restated
Term Note to be signed by its duly authorized officer as of the day and year
first above written.
XXXXX TOWING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. XxXxxxx
Title: Vice President
Amount of
Principal Paid Balance of
Amount of Type of Interest Principal Notation
Date Loan Loan Period or Prepaid Unpaid Made By:
