TERM A NOTE
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$11,954,023.00 New York, New York
February 27, 1998
FOR VALUE RECEIVED, each of the undersigned, DEFLECTA-
SHIELD CORPORATION, a Delaware corporation, XXXX INDUSTRIES,
INCORPORATED, a Minnesota corporation, BELMOR AUTOTRON CORP., a
Delaware corporation, and DFM CORP., an Iowa corporation (each a
"Borrower" and collectively "Borrowers"), hereby jointly,
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severally and unconditionally promises to pay to the order of
XXXXXX FINANCIAL, INC., a Delaware corporation, ("Lender"), at
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the office of the Agent (as defined in the Credit Agreement
referred to below) at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
or at such other place as the holder of this Term A Note may from
time to time designate in writing, in lawful money of the United
States of America and in immediately available funds, the
principal sum of ELEVEN MILLION NINE HUNDRED FIFTY-FOUR THOUSAND
TWENTY-THREE DOLLARS AND 00/100 CENTS ($11,954,023.00).
This Term A Note is payable in periodic installments on
the dates and in the amounts set forth in the Credit Agreement.
This Term A Note is one of the Notes referred to in, was executed
and delivered pursuant to, and evidences obligations of Borrowers
under, that certain Credit Agreement dated as of February 27,
1998, by and among Borrowers, Holdings, the Active Subsidiaries
named therein, all Lenders party thereto Xxxxxx Financial, Inc.,
as a Lender and as Agent, (as the same may be amended, restated,
supplemented or otherwise modified and in effect from time to
time, the "Credit Agreement"), to which reference is hereby made
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for a statement of the terms and conditions under which the loan
evidenced hereby is made and is to be repaid and for a statement
of Agent's, and Xxxxxxx' remedies upon the occurrence of an Event
of Default (as defined therein). The Credit Agreement is
incorporated herein by reference in its entirety. Capitalized
terms used but not otherwise defined herein are used in this Term
A Note as defined in the Credit Agreement.
Borrowers further jointly and severally promise to pay
interest on the unpaid principal amount hereof from the date
hereof until payment in full thereof at the rate from time to
time applicable to Term Loan A as determined in accordance with
the Credit Agreement; provided, however, that upon the occurrence
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and during the continuance of an Event of Default, as provided in
the Credit Agreement, Borrowers shall pay to the Agent, for the
benefit of Xxxxxxx, interest on the principal balance of this
Term A Note at the rate of interest applicable upon the
occurrence and during the continuance of an Event of Default as
determined in accordance with the Credit Agreement.
Interest charges shall be computed as set forth in the
Credit Agreement and shall be payable at the rates, at the times
and from the dates specified in the Credit Agreement, on the date
of any prepayment hereof, at maturity, whether due by
acceleration or otherwise, and as otherwise provided in the
Credit Agreement. From and after the date when the principal
balance hereof becomes due and payable, whether by acceleration
or otherwise, interest hereon shall be payable on demand.
This Term A Note is secured pursuant to the Credit
Agreement and the Loan Documents referred to therein, and
reference is made thereto for a statement of the terms and
conditions of such security.
If a payment hereunder becomes due and payable
hereunder other than on a Business Day, the due date thereof
shall be extended to the next succeeding Business Day, and
interest shall be payable thereon during such extension at the
applicable rate specified in the Credit Agreement. Credit for
any payments made by any Borrower shall, for the purpose of
computing interest earned by Xxxxxx, be given in accordance with
the Credit Agreement. In no contingency or event whatsoever
shall interest charged hereunder, however such interest may be
characterized or computed, exceed the highest rate permissible
under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that
such a court determines that Xxxxxx has received interest
hereunder in excess of the highest rate applicable hereto, such
excess shall be applied in accordance with the terms of the
Credit Agreement.
Agent shall have the continuing exclusive right to
apply and to reapply any and all payments hereunder against the
Obligations in such manner, consistent with the terms of the
Credit Agreement, as Agent deems advisable.
Each Borrower hereby waives demand, presentment and
protest and notice of demand, presentment, protest and
nonpayment. Each Borrower also waives all rights to notice and
hearing of any kind upon the occurrence and continuance of an
Event of Default prior to the exercise by Xxxxxxx, or Agent on
behalf of Lenders, of its right to repossess the Collateral
without judicial process or to replevy, attach or levy upon the
Collateral without notice or hearing.
In addition to, and not in limitation of, the foregoing
and the provisions of the Credit Agreement, the undersigned
jointly and severally further agree, subject only to any
limitation imposed by applicable law, to pay all expenses,
including attorneys' fees and legal expenses, incurred by the
holder of this Term A Note in endeavoring to collect any amounts
payable hereunder which are not paid when due, whether by
acceleration or otherwise.
THIS TERM A NOTE, INCLUDING PROVISIONS REGARDING THE
PAYMENT OF INTEREST, SHALL BE DEEMED TO HAVE BEEN DELIVERED AND
MADE AT NEW YORK, NEW YORK AND SHALL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW
PROVISIONS) AND JUDICIAL DECISIONS OF THE STATE OF NEW YORK.
Whenever possible each provision of this Term A Note
shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Term A Note
shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Term A Note.
Whenever in this Term A Note reference is made to Agent, Lenders
or Borrowers, such reference shall be deemed to include, as
applicable, a reference to their respective permitted successors
and assigns and, in the case of any Lender, any financial
institutions to which it has sold or assigned all or any part of
its commitment to make the Term Loan A as permitted under the
Credit Agreement. The provisions of this Term A Note shall be
binding upon and shall inure to the benefit of such permitted
successors and assigns. Each Borrower's successors and assigns
shall include, without limitation, a receiver, trustee or debtor
in possession of or for such Borrower.
DEFLECTA-SHIELD CORPORATION
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Chairman of the Board
of Directors
XXXX INDUSTRIES, INCORPORATED
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Chairman of the Board
of Directors
BELMOR AUTOTRON CORP.
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Chairman of the Board
of Directors
DFM CORP.
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Chairman of the Board
of Directors
