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EXHIBIT 10.53
AMENDED AND RESTATED TERM NOTE
$5,169,000.00 March 27, 1997
Albany, New York
FOR VALUE RECEIVED, the undersigned, DECORA, INCORPORATED, a Delaware
corporation authorized to do business in the State of New York as Decora
Manufacturing, with an office and principal place of business at 0 Xxxx Xxxxxx,
Xx. Xxxxxx, New York 12828 (the "Borrower") promises to pay to the order of
FLEET BANK, a bank organized and existing under the laws of the State of New
York (herein called the "Bank"), at the office of the Bank, 00 Xxxxx Xxxxxx,
Xxxxxx, Xxx Xxxx 00000, or at such other place as may be designated from time to
time by the Bank, FIVE MILLION ONE HUNDRED SIXTY NINE THOUSAND AND NO/100
DOLLARS ($5,169,000.00), lawful money of the United States of America, plus
interest on the unpaid principal balance computed from the date hereof, at the
per annum rates set forth below, based on a year of 360 days but chargeable on
actual days.
As used herein, the following terms shall have the following meanings:
Banking Day - any day on which the Bank is open for business.
Cost of Funds Fixed Rate - A per annum fixed interest rate equal to the Fleet
Bank Cost of Funds Rate, plus two and one-quarter of one percent (2.25%).
Default Rate - The Fleet Bank Prime Rate, plus two (2.00%) percent.
Election Notice - The Interest Rate Election Notice to be delivered by the
Borrower to the Bank from time to time in the form of Exhibit A attached hereto,
in which the Borrower shall indicate an Interest Rate Election and an Interest
Rate Election Period. Any Election Notice specifying a LIBOR Fixed Rate Interest
Rate Election must be submitted to the Bank at least three (3) days prior to the
effective date of said LIBOR Fixed Rate Interest Rate Election.
Event of Default - Any of those events defined as an Event of Default under this
Note, the Loan Agreement, xxxx of the Instruments of Collateral Security, or any
other instruments or documents executed in connection with the Loan.
Fleet Bank Cost of Funds Rate - A rate per annum equal to the rate of interest
the Bank is required to pay (or is offering to pay) for a Liability in an amount
equal to the unpaid balance of the Loan having a maturity equal to two (2) years
(the "Cost of Funds
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Interest Period"), as adjusted for reserve requirements and such other
requirements as may be imposed by federal, state and/or local government and
regulatory agencies, which shall include the fees assessed by the Bank's
so-called "Treasury Division."
Fleet Bank Prime Rate - That rate announced from time to time by the Bank as a
reference point for determining interest rates charged on certain loans and is
not necessarily the lowest rate at which the Bank lends. Any change in this
interest rate shall be effective on the date the change in such rate occurs,
whether or not notice has been given to the Borrower.
Floating Rate - the Fleet Bank Prime Rate, plus one and one quarter of one
percent (1.25%).
Instruments of Collateral Security - Those loan documents already executed or to
be executed by the Borrower and the Borrower's Corporate Guarantor - Decora
Industries, Inc. identified in paragraph 3 (k) of the Loan Agreement.
Interest Rate Election - An election on the part of the Borrower to choose the
Cost of Funds Fixed Rate, the LIBOR Fixed Rate or the Floating Rate to be
charged on the Loan. If prior to May 31, 1999, the Borrower should select the
Floating Rate or the LIBOR Fixed Rate to be charged on the Loan, the Borrower
will be required to purchase an interest rate cap, in the case of a Floating
Rate Interest Rate Election, and/or an interest rate swap, in the case of a
LIBOR Fixed Rate Interest Rate Election.
Interest Rate Election Period - The time period selected by the Borrower during
which interest is to accrue on the Loan at Cost of Funds Fixed Rate or the LIBOR
Fixed Rate as elected by the Borrower. Any Interest Rate Election Period must
terminate on August 31, November 30, February 28 or February 29 as the case may
be, or May 31. An Interest Rate Election Period during which interest is to
accrue at the Cost of Funds Fixed Rate shall be for a term of two (2) years. An
Interest Period during which interest is to accrue at the LIBOR Fixed Rate shall
be for a term of thirty (30) days. In no event shall any Interest Rate Election
Period extend beyond the Maturity Date of this Loan.
Liability - Any liability which the Bank could incur for an obligation (or
obligations) in an amount equal to the unpaid principal amount of the Loan and
upon which the Fleet Bank Cost of Funds Rate can be based. It is understood that
the choice of which liabilities to use in determining the Fleet Bank Cost of
Funds Rate shall be made by the Bank in its sole discretion and that the Bank is
not obligated to incur any particular liability on which the Fleet Bank Cost of
Funds Rate is based, but may do so in its sole discretion.
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LIBOR Rate - A rate per annum as determined on the basis of the offered rates
for deposits in U.S. dollars for a period of time closest to thirty (30) days
(the "LIBOR Interest Period") which appears on the Telerate page 3750 as of
11:00 a.m. London time on the day that is three Banking Days preceding the first
day of any Interest Rate Election Period during which interest is to accrue at
the LIBOR Fixed Rate. If such rate does not appear on the Telerate page 3750,
the rate for that date will be determined on the basis of the offered rates for
deposits in U. S. dollars closest to the maturity of the LIBOR Interest Period
which are offered by four major banks in the London Interbank Market at
approximately 11:00 a.m. London time on the day that is three Banking Days prior
to the first day of the LIBOR Interest Period in question. The principal London
office of each of the four major London banks will be requested to provide a
quotation of its U.S. dollar deposit offered rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested, the rate
for that date will be determined on the basis of the rates quoted for loans in
U.S. dollars to leading European banks for a period of time closest to the
maturity of the LIBOR Interest Period offered by major banks in New York City at
approximately 11:00 a.m. New York City time, on the day that is three Banking
Days preceding the first day of the LIBOR Interest Period in question. In the
event the Bank is unable to obtain any such quotation as provided above, it will
be deemed that a LIBOR Rate cannot be determined. In the event the Board of
Governors of the Federal Reserve System shall impose a reserve percentage with
respect to Eurodollar deposits of the Bank, then for any period during which
such reserve percentage shall apply, the LIBOR Rate shall be equal to the amount
determined above divided by an amount up to one (1) minus such reserve
percentage.
LIBOR Fixed Rate - A per annum rate fixed at the LIBOR Rate, plus 200 basis
points.
Loan - The loan of $5,169,000.00 by the Bank to the Borrower.
Loan Agreement - that certain Loan and Security Agreement by, between and among
the Borrower, Norstar Bank of Upstate NY n/k/a the Bank and Decora Industries,
Inc. (successor by merger to Utilitech, Incorporated) dated April 18, 1990, as
modified by that certain Loan and Security Agreement Modification Agreement No.
1 dated July 19, 1994, that certain Loan and Security Agreement Modification
Agreement No. 2 dated August 13, 1996 and that certain Note and Loan and
Security Agreement Modification Agreement No. 3 dated of even date herewith.
Maturity Date - May 31, 1999.
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Immediately upon execution of this Note, the Borrower shall deliver to
the Bank an Election Notice indicating an Interest Rate Election and an Interest
Rate Election Period for the Loan. The Interest Rate Election shall remain in
effect until expiration of the Interest Rate Election Period chosen by the
Borrower for the Loan. Prior to the end of a selected Interest Rate Election
Period, the Borrower shall deliver to the Bank a new Election Notice designating
the new Interest Rate Election Period and the Interest Rate Election to apply to
the Loan during such Interest Rate Election Period. In the event the Borrower
fails to deliver an Election Notice to the Bank prior to the expiration of any
Interest Rate Election Period, interest shall accrue on the Loan at the Floating
Rate until the Borrower again makes an Interest Rate Election. Once chosen, the
Interest Rate Election shall remain in effect until the expiration of the
Interest Rate Election Period.
The Borrower agrees to pay principal and interest as follows:
Interest shall be payable monthly in arrears commencing March 31, 1997
and continuing on the last day of each month thereafter during the term of the
Loan. In addition, quarterly principal payments shall be made commencing May 31,
1997, and continuing on each August 31st, November 30th, February 28th or
February 29th as the case may be, and May 31st thereafter in the amount of
$333,000.00 each. The entire unpaid balance of principal, plus accrued interest,
shall be due and payable in any event on the Maturity Date.
In the absence of an Event of Default, all payments made hereunder shall
be applied first to accrued interest, next to the payments of any fees and
expenses of the Bank, then to principal and finally to any unpaid "late charges"
as hereinafter defined. If an Event of Default occurs hereunder, the Bank my
apply any payments received to any sums due hereunder in such manner as it deems
appropriate.
In the event the Borrower prepays the Loan prior to the end of any
applicable LIBOR Interest Period or Cost of Funds Interest Period, as the case
may be, the Borrower may be assessed a prepayment premium computed as follows:
During any period in which the Cost of Funds Fixed Rate or the LIBOR
Fixed Rate is being charged, the principal balance of the Loan
outstanding may be repaid in full or in part at any time subject to
current market conditions as the Bank may determine, and to the extent
such prepayment is possible, the Borrower shall pay to the Bank a
prepayment penalty in an amount computed as follows: The current
published rate as of the date of prepayment for United States Treasury
Notes or Bills (Bills on a discounted basis shall be converted to a bond
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equivalent) with a maturity date closest to the last day of the LIBOR
Interest Period or Cost of Funds Interest Period, as the case may be,
shall be subtracted from the LIBOR Rate or the Fleet Bank Cost of Funds
Rate, as the case may be, in effect at the time of prepayment. If the
result is zero or a negative number, there shall be no prepayment
penalty. If the result is a positive number, then the resulting
percentage shall be multiplied by the amount of the principal balance
being prepaid. The resulting amount will be divided by 360 and
multiplied by the number of days remaining in the LIBOR Interest Period
or the Cost of Funds Interest Period, as the case may be. Said amount
shall be reduced to present value calculated by using the number of days
remaining in the designated Interest Period and using the above
referenced United States Treasury Note or Bill rate and the number of
days remaining in said designated Interest Period as of the date of the
prepayment. The resulting amount shall be the prepayment premium due to
the Bank upon the prepayment of the Loan. If by reason of an Event of
Default (as hereinafter defined) hereunder, the Bank elects to declare
this Note to be immediately due and payable, then any prepayment premium
with respect to this Note shall become due and payable in the same
manner as if the Borrower had voluntarily exercised such right of
prepayment.
The Borrower acknowledges that this Note is subject to the provisions of
the Loan Agreement and the Instruments of Collateral Security.
In the event that any payment shall become overdue for a period in
excess of ten (10) days, a "Late Charge" of five cents ($0.05) for each dollar
($1.00) so overdue will be charged by the Bank for the purpose of defraying the
expense incident to handling such delinquent payment.
Upon the occurrence of one or more Events of Default as provided below,
the entire disbursed and unpaid principal, and the interest on this Note shall,
upon written demand of the Bank, become immediately due and payable without
presentment or protest or other notice or demand, all of which are expressly
waived by the Borrower. Any one or more of the following shall constitute an
Event of Default:
(a) Upon the failure of the Borrower to pay any part of the interest or
principal on this Note when due and payable and continuance of such failure for
ten (10) days;
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(b) Any event of default pursuant to the terms and conditions
of the Loan Agreement or any of the Instruments of Collateral
Security;
(c) Any default pursuant to the terms and conditions of any other loan
or credit accommodation by the Bank to the Borrower or by the Bank to Decora
Industries, Inc. after notice and the expiration of any grace period, if
applicable.
If an Event of Default has occurred and is continuing, interest shall
accrue at the Default Rate until the earlier of (i) the Event of Default is
cured, or (ii) this Note is paid in full.
The powers and remedies given hereby and by the Loan Agreement and the
Instruments of Collateral Security shall not be exclusive of any other powers
and remedies available to the Bank. No course of dealings between the Borrower
and the Bank and no delay on the part of the Bank in exercising any rights with
respect to any default shall operate as a waiver of any rights of the Bank.
Failure on the part of the Bank to exercise any rights with respect to any
default shall not operate as a waiver of any rights with respect to any other
default. The Borrower agrees to pay all costs and expenses incurred by the Bank
in enforcing this Note, including, without limitation, reasonable attorneys'
fees and legal expenses.
Interest after maturity (whether by acceleration or otherwise) shall be
payable at the Default Rate until this Note is paid in full. If any provisions
of this Note or the application of it to any person or circumstance, shall be
invalid or unenforceable, the remainder of this Note or the application of those
provisions to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected and every other provision of
this Note shall be valid and fully enforceable.
This Note may not be waived, changed, modified or discharged orally, but
only by agreement in writing signed by the party against whom any enforcement of
any waiver, change, modification or discharge is sought.
This Note and all rights of the Bank hereunder, may be assigned by the
Bank, but this Note may not be assigned by the Borrower.
The purchaser, assignee, transferee, or pledgee of this Note shall be
entitled to all rights of the Bank hereunder as if said purchaser, assignee,
transferee, or pledgee were originally named in this Note.
The Borrower hereby irrevocably submits to the jurisdiction of any New
York or Federal court sitting in Albany County, New York in
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any action or proceeding arising out of or relating to this Note and the
Borrower hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State court or in such
Federal court. The Borrower hereby irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding. Nothing in this paragraph shall affect the right
of the Lender to bring any action or proceeding against the Borrower or its
property in the courts of other jurisdictions.
THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED HEREON, OR ARISING
OUT OF OR IN CONNECTION WITH THIS NOTE, THE LOAN AGREEMENT OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH.
This Note modifies, amends and restates in its entirety a promissory
note from the undersigned to the Bank in the face amount of Eight Million and
no/100 Dollars ($8,000,000.00) dated July 19, 1994.
IN WITNESS WHEREOF, the Borrower has duly executed this Note the day and
year first above written.
DECORA, INCORPORATED d/b/a DECORA
MANUFACTURING
By: _________________________
Xxxxxxx X. Xxxxxxx
Vice President Finance
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