EXHIBIT 10.4
FIFTH AMENDED REVOLVING NOTE
$30,000,000 Chicago, Illinois
October __, 2000
FOR VALUE RECEIVED, the undersigned, ATLANTIS PLASTICS, INC., a Florida
corporation ("Borrower"), hereby unconditionally promises to pay to the order of
XXXXXX FINANCIAL, INC., a Delaware corporation ("Lender"), at the office of
Agent (as defined below) at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or
at such other place as the holder of this Fifth Amended Revolving Note (the
"Revolving 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 THIRTY MILLION DOLLARS ($30,000,000), or, if less, the aggregate unpaid
principal amount of all advances made to Borrower by Lender pursuant to
subsection 2.1(A) of the Credit Agreement described below, at such times as are
specified there.
This Revolving Note is one of the Notes referred to in, was executed
and delivered pursuant to, and evidences indebtedness of Borrower incurred
under, that certain Credit Agreement dated as of February 22, 1993 by and among
Xxxxxxxx, each of the Lenders party thereto from time to time, and Xxxxxx
Financial, Inc., in its capacity as Agent for the Lenders (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 for a statement
of the terms and conditions under which the loan evidenced hereby was made and
is to be repaid and for a statement of Agent's and Xxxxxx's remedies upon the
occurrence of an Event of Default. Capitalized terms used herein but not
otherwise specifically defined shall have the meanings ascribed to such terms in
the Credit Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof from the date hereof until payment in full at the rate
from time to time applicable to the Revolving Loan as determined in accordance
with the Credit Agreement; provided, however, that upon the occurrence and
during the continuance of an Event of Default, Borrower shall pay interest on
the outstanding principal balance of this Revolving Note at the rate of interest
applicable following the occurrence of an Event of Default as determined in
accordance with the Credit Agreement.
Interest on this Revolving Note shall be payable, 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. 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.
The indebtedness evidenced by this Revolving Note is secured pursuant
to the terms of the Loan Documents.
Borrower hereby waives demand, presentment and protest and notice of
demand, presentment, protest and nonpayment.
Xxxxxxxx further agrees, subject only to any limitation imposed by
applicable law, to pay all expenses, including attorneys' fees and legal
expenses, incurred by Borrower in endeavoring to collect any amounts payable
hereunder which are not paid when due, whether by acceleration or otherwise.
THIS REVOLVING NOTE HAS BEEN DELIVERED AT CHICAGO, ILLINOIS, AND SHALL
BE GOVERNED BY, AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF
ILLINOIS. Whenever possible each provision of this Revolving Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Revolving 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 Revolving Note. Whenever in this Revolving
Note reference is made to Agent, Lender or Borrower, such reference shall be
deemed to include, as applicable, a reference to their respective permitted
successors and assigns and in the case of Lender, any financial institution to
which it has sold or assigned all or any part of its interest in the Revolving
Loan or in its commitment to make the Revolving Loan as permitted by the Credit
Agreement. The provisions of this Revolving Note shall be binding upon and shall
inure to the benefit of such permitted successors and assigns. Xxxxxxxx's
successors and assigns shall include, without limitation, a receiver, trustee or
debtor in possession of or for Borrower.
This Revolving Note is issued in substitution for and replacement of,
but not in payment of, the Revolving Note of Borrower dated May 12, 2000,
payable to the order of Lender in the original principal amount of $25,000,000.
ATLANTIS PLASTICS, INC.,
a Florida corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
-2-
