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EIGHTH AMENDMENT TO LOAN AGREEMENT
This EIGHTH AMENDMENT TO LOAN AGREEMENT ("Amendment") dated March
31, 1998 is made by and among APOGEE, INC., a Delaware corporation ("Apogee")
and each Subsidiary identified on the attached Schedule 6.1(c) (collectively,
the "Borrowing Subsidiaries" and together with Apogee, the "Borrowers" and
individually, a "Borrower") and PNC BANK, NATIONAL ASSOCIATION, a national
banking association (the "Bank").
Reference is made to the Revolving Credit Agreement dated as of
April 11, 1996 by and among the Borrowers and the Bank, as amended on June 21,
1996, November 1, 1996, March 11, 1997, August 8, 1997, December 22, 1997,
January 29, 1998 and February 27, 1998 (the "Agreement"). The obligations under
the Agreement and the Loan Documents were evidenced by the Borrowers' several
Revolving Credit Notes payable to the Bank. (Capitalized terms used herein not
otherwise defined shall have the meanings provided for in the Agreement.)
The Borrowers have requested, and the Bank has agreed upon the
following terms and conditions, that: (i) the maturity of the two short-term
advances heretofore made pursuant to the terms of the amendments to the
Revolving Credit Agreement dated February 27, 1998 and evidenced by the
Revolving Credit Notes dated those dates each be
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extended to April 30, 1998, unless otherwise due earlier pursuant to the terms
thereof or of any Loan Document, and (ii) an additional short-term advance be
made in excess of the limits otherwise applicable to Revolving Credit Loans in
anticipation of the sale of assets more particularly described in the Sixth
Amendment to Loan Agreement dated January 29, 1998.
NOW, THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Amendment to Agreement.
(a) Section 1.1 of the Agreement is hereby amended effective as of
March 31, 1998 by adding the new definition "March Advance Note" to read in its
entirety as follows:
March Advance Note shall mean a $600,000 principal amount Revolving
Credit Note executed on March 31, 1998, all amounts under which shall be due on
April 30, 1998, unless otherwise due earlier pursuant to the terms thereof or of
any Loan Document.
(b) The definition of "Action Date" in the Fifth Amendment to Loan
Agreement dated December 22, 1997, as such definition was amended pursuant to
the Seventh Amendment to Loan Agreement dated February 27, 1998, is hereby
further amended to read in its entirety as follows:
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"Action Date" shall be the earlier to occur of the following:
(a) Xxxxx 00, 0000
(x) the completion of the "Special Asset Sale" referred to
in the Sixth Amendment to Loan Agreement dated January
29, 1988 (the "Sixth Amendment"); or
(c) the date on which the "Sale Agreement" referred to in
the Sixth Amendment is canceled, terminated or made
ineffective.
(c) The Agreement, the December Advance Note, the January Advance
Note and each of the Loan Documents is hereby amended by extending to April 30,
1998, or earlier pursuant to the terms thereof or any Loan Document, the latest
date by which the December Advance Note in the principal amount of $700,000 and
the January Advance Note in the principal amount of $1,700,000 must each be
repaid.
(d) Section 2.1(b) of the Agreement is amended by adding at the end
thereof the following paragraph:
The Bank agrees to make on March 31, 1998 an advance of $600,000
notwithstanding that all or some of such amount is in excess of the
Discretionary Advance Sublimit. Such advance shall be evidenced by
the March Advance Note and shall bear interest at the rate otherwise
applicable from time to time to the Indebtedness. The March Advance
Note need not be repaid under Section 5.3(b) but all principal,
interest and other amounts due under or evidenced by the March
Advance Note shall be repaid in full on April 30, 1998, unless
otherwise due earlier pursuant to the terms thereof or of any Loan
Document. The March
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Advance Note is and shall be a "Loan Document" and a "Revolving
Credit Note" (except that its terms may differ from the other
Revolving Credit Note) and the obligations evidenced thereby shall
be "Indebtedness" of each of the Borrowers which are secured by the
Collateral and the Guaranties. Without limited the foregoing,
failure to pay when due any amounts under the March Advance Note
shall constitute an Event of Default under Section 9.1(a) of the
Agreement.
2. Waiver.
The Borrowers acknowledge that the Loan Parties are in violation of
Section 8.2(l) [Minimum Net Worth], Section 8.2(m) [Funded Debt to Cash Flow
From Operations], Section 8.2(n) [Senior Indebtedness to Cash Flow From
Operations] and Section 8.2(o) [Interest Coverage] (the "Existing Defaults").
For the period from December 31, 1997 to and including the "Action Date" (as
defined herein), the Bank hereby consents to the Borrowers' non-compliance with
such sections and the existence of the Existing Defaults and waives the right to
exercise remedies in connection therewith for the period described above.
Notwithstanding the foregoing, the Bank's consent and waiver set forth in this
Section 1 shall terminate on the Action Date.
3. Miscellaneous.
(a) Recognizing and in consideration of the Bank's agreement to the
amendments herein set forth, the Borrowers hereby waive and release the Bank and
its officers, attorneys, agents, and employees from any liability, suit, damage,
claim, loss or expense of any kind or nature whatsoever and howsoever arising
out of or
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relating to the Bank's acts or omissions with respect to the Revolving Credit
Loans. The Borrowers further hereby agree to indemnify and hold the Bank and its
officers, attorneys, agents and employees harmless from any loss, damage,
judgment, liability or expense (including counsel fees) suffered by or rendered
against the Bank or any of them on account of anything arising out of the
Revolving Credit Note, the January Advance Note, the December Advance Note, the
March Advance Note, the Agreement, this Amendment, the Loan Documents or any
other document delivered pursuant thereto up to and including the date hereof.
(b) All of the terms, conditions, provisions and covenants in the
Notes, the Agreement, the Loan Documents, and all other documents delivered to
the Bank in connection with any of the foregoing documents and obligations
secured thereby shall remain unaltered and in full force and effect except as
modified by this Amendment.
(c) The Borrowers hereby represent and warrant to the Bank as of the
date of this Amendment that, other than the Existing Defaults, there exists no
Event of Default or Potential Default under any of the Loan Documents.
(d) The Borrowers agree to pay all of the Bank's expenses incurred
in connection with the preparation of this Amendment and the transactions
contemplated by this Amendment, including without limitation, the reasonable
fees and expenses of the Bank's counsel.
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(e) This Amendment shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
(f) Each and every one of the terms and provisions of this Amendment
shall be binding upon and shall inure to the benefit of the Borrowers and the
Bank and their respective successors and assigns.
(g) This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original as against any party whose signature
appears thereon, and all of which shall constitute but one and the same
instrument.
(h) Apogee represents and warrants that all of its subsidiaries are
listed on the attached Schedule 6.1(c).
(i) THE EXECUTION AND DELIVERY OF THIS AMENDMENT SHALL NOT BE
CONSTRUED TO ESTABLISH A COURSE OF CONDUCT OR IMPLY THAT ANY OTHER, FUTURE OR
FURTHER WAIVERS, CONSENTS OR FORBEARANCE SHALL BE CONSIDERED, PROVIDED OR AGREED
TO. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO BE A WAIVER OF ANY OF THE RIGHTS
AND REMEDIES AVAILABLE TO THE BANK UNDER APPLICABLE LAW OF ANY OF THE LOAN
DOCUMENTS, AND THE BANK RESERVES ALL RIGHTS AND REMEDIES AGAINST THE BORROWERS.
NO FAILURE TO EXERCISE, NO DELAY IN EXERCISING, NO MAKING OF ANY ADVANCE TO ANY
OF THE BORROWERS BY THE BANK, AND NO ACCEPTANCE OF ANY PAYMENT OR NEGOTIATION BY
THE BANK, NOW OR IN THE FUTURE, SHALL OPERATE AS A WAIVER OF ANY POWER, REMEDY,
OR RIGHT OF THE BANK UNDER THIS AGREEMENT, THE LOAN DOCUMENTS OR APPLICABLE LAW,
NOR SHALL ANY SINGLE OR PARTIAL EXERCISE OF ANY POWER, REMEDY, OR RIGHT PRECLUDE
ANY OTHER OR FURTHER EXERCISE OF ANY SUCH POWER, REMEDY OR RIGHT.
(j) This Amendment, and each of the two Revolving Credit Notes
(Amended and Restated) dated the date hereof, and the additional Revolving
Credit Note dated the date hereof, is a "Loan Document" under the Agreement and
any
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breach of the terms hereof or thereof shall be an Event of Default under Section
9.1(d) of the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the day
and year first above written.
APOGEE, INC., a Delaware corporation,
and each of the other Borrowers and
Guarantors listed on Schedule 6.1(c)
By:
---------------------------------------
[Name],
the [Title] of each of
----------------
the Borrowers and Guarantors listed on
Schedule 6.1(c),
-and-
PNC BANK, NATIONAL ASSOCIATION
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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REVOLVING CREDIT NOTE
(Amended and Restated)
$1,700,000 Philadelphia, Pennsylvania
March 31, 1998
FOR VALUE RECEIVED, the undersigned, APOGEE, INC., a Delaware
corporation and each Subsidiary identified on the attached Schedule 6.1(c)
(collectively, the "Borrowers") hereby promise, jointly and severally, to pay to
the order of PNC BANK, NATIONAL ASSOCIATION (the "Bank") the principal sum of
One Million Seven Hundred Thousand U.S. Dollars (U.S. $1,700,000). This
Revolving Credit Note evidences each Borrower's obligation to repay a Revolving
Credit Loan made by the Bank on this date to the Borrowers pursuant to Section 2
of the Credit Agreement dated April 11, 1996 by and among the Borrowers, the
Guarantors and the Bank, as thereafter amended, including on the date hereof
(the "Credit Agreement"). All amounts outstanding hereunder, including
principal, interest and fees, shall be due and payable on the Action Date. As
used herein, Action Date shall mean the earliest to occur of the following:
(a) April 30, 1998;
(b) the completion of the "Special Asset Sale" referred to in the
Sixth Amendment to Loan Agreement dated January 29, 1998 (the "Sixth
Amendment"); or
(c) the date on which the "Sale Agreement" referred to in the Sixth
Amendment is canceled, terminated or made ineffective.
The Borrowers shall pay interest on the unpaid principal balance
hereof from time to time outstanding from the date hereof at the rate or rates
per annum specified by the Borrowers pursuant to Section 4.1(a) of, or as
otherwise provided in, the Credit Agreement.
Upon the occurrence and during the continuation of an Event of
Default, the Borrowers shall pay interest on the entire principal amount of the
then outstanding Revolving Credit Loans evidenced by this Revolving Credit Note
at an increased rate of interest as more fully set forth in Section 4.3 of the
Credit Agreement. Such interest rate will accrue before and after any judgment
has been entered.
Interest on this Revolving Credit Note will be payable as set forth
in Section 5.2 of the Credit Agreement on the Action Date and at such other
times as are specified in the Credit Agreement.
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Except as otherwise provided in the Credit Agreement, any payment or
action to be made or taken hereunder shall be stated to be or become due on an
day which is not a Business Day, such payment or action shall be extended to the
next succeeding Business Day unless such Business Day falls in the next calendar
month, in which case such Euro-Rate Interest Period shall end on the next
preceding Business Day.
Subject to the provisions of the Credit Agreement, payments of both
principal and interest shall be made without setoff, counterclaim or other
deduction of any nature at the office of the Bank located at One PNC Plaza,
Fifth Avenue & Wood Street, Pittsburgh, Pennsylvania 15265, in lawful money of
the United States of American in immediately available funds.
This Revolving Credit Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement and
other Loan Documents, including the representations, warranties, covenants,
conditions, security interests or Liens contained or granted therein. The Credit
Agreement among other things contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayment, in certain circumstances, on account of principal hereof prior to
maturity upon the terms and conditions therein specified. Failure to pay any
amount due hereunder on the Action Date shall constitute an Event of Default
under Section 9.1(a) of the Credit Agreement.
All capitalized terms used herein shall, unless otherwise defined
herein, have the same meanings given to such terms in the Credit Agreement.
Except as otherwise provided in the Credit Agreement, the Borrowers
waive presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Revolving Credit Note and the Credit Agreement.
This Revolving Credit Note shall bind the Borrowers and their
respective successors and assigns, and the benefits hereof shall inure to the
benefit of the Bank and its successors and assigns. All references herein to the
"Borrowers" and the "Bank" shall be deemed to apply to the Borrower and the
Bank, respectively, and their respective successors and assigns.
This Revolving Credit Note and any other documents delivered in
connection herewith and the rights and obligations of the parties hereto and
thereto shall for all
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purposes be governed by and construed and enforced in accordance with the
internal laws of the Commonwealth of Pennsylvania without giving effect to its
conflicts of law principles.
EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD, TO APPEAR FOR AND CONFESS JUDGMENT
AS OF ANY TERM AGAINST SUCH BORROWER FOR SUCH SUMS AS ARE DUE, IN EITHER CASE
WITH OR WITHOUT DECLARATION, WITH COSTS OF SUIT, RELEASE OF ERRORS, WITHOUT STAY
OF EXECUTION AND WITH AN AMOUNT NOT TO EXCEED THE LESSER OF $2000 OR TWO PERCENT
(2%) OF THE AMOUNT OF SUCH JUDGMENT ADDED FOR ATTORNEY'S FEES FOR COLLECTION. IF
A COPY OF THIS AGREEMENT, VERIFIED BY AFFIDAVIT OF THE BANK OR SOMEONE ON BEHALF
OF THE BANK, SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO
FILE THE ORIGINAL OF THIS NOTE AS A WARRANT OF ATTORNEY. NO SINGLE EXERCISE OF
THE FOREGOING WARRANT OF ATTORNEY TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST
THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE
INVALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE
EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT,UNTIL ALL OF THE
OBLIGATION HAVE BEEN SATISFIED IN FULL AND THIS AGREEMENT SHALL BE SUFFICIENT
WARRANT THEREFOR.
EACH BORROWER HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID
PROCEEDINGS, WAIVES STAY OF EXECUTION AND EXTENSION OF TIME OF PAYMENT, AND
WAIVES ALL EXEMPTIONS FROM LEVY AND SALE OF ANY PROPERTY THAT NOW IS OR
HEREAFTER MAY BE EXEMPTED BY LAW.
Each Guarantor consents to the execution and delivery of this
Revolving Credit Note and agrees that the obligations evidenced hereby shall be
"Guaranteed Indebtedness" under the Guaranty Agreement.
THIS AMENDED AND RESTATED REVOLVING CREDIT NOTE REPLACES AND
SUPERSEDES THE REVOLVING CREDIT NOTE DATED FEBRUARY 27, 1998 IN THE PRINCIPAL
AMOUNT OF $1,700,00 (THE "PRIOR NOTE"). TO THE EXTENT THAT THE PRINCIPAL BALANCE
OF THIS NOTE INCLUDES THE BORROWER'S INDEBTEDNESS HITHERTO EVIDENCED BY THE
PRIOR NOTE, THIS NOTE (I) MERELY RE-EVIDENCES THE INDEBTEDNESS HITHERTO
EVIDENCED BY THE PRIOR NOTE, (II) IS GIVEN AS SUBSTITUTION FOR, AND NOT AS
PAYMENT OF, THE PRIOR NOTE AND (III) IS IN NO WAY INTENDED TO CONSTITUTE A
NOVATION OF THE PRIOR NOTE. BORROWERS HEREBY AGREE THAT THIS NOTE SHALL IN ALL
RESPECTS TAKE THE PLACE OF AND INCLUDE ANY PRINCIPAL AMOUNT OF THE PRIOR NOTE.
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IN WITNESS WHEREOF, the undersigned has executed this Revolving
Credit Note by its duly authorized officers with the intention that it
constitute a sealed instrument.
APOGEE, INC., a Delaware
corporation, and each of the
other Borrowers and Guarantors
listed on Schedule 6.1(c)
By:
--------------------------
[Name],
the [Title] of each
----------
of the Borrowers and
Guarantors listed on Schedule
6.1(c)
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REVOLVING CREDIT NOTE
(Amended and Restated)
$700,000 Philadelphia, Pennsylvania
March 31, 1998
FOR VALUE RECEIVED, the undersigned, APOGEE, INC., a Delaware
corporation and each Subsidiary identified on the attached Schedule 6.1(c)
(collectively, the "Borrowers") hereby promise, jointly and severally, to pay to
the order of PNC BANK, NATIONAL ASSOCIATION (the "Bank") the principal sum of
Seven Hundred Thousand U.S. Dollars (U.S. $700,000). This Note evidences each
Borrower's obligation to repay a Revolving Credit Loan made by the Bank on this
date to the Borrowers pursuant to Section 2 of the Credit Agreement dated April
11, 1996 by and among the Borrowers, the Guarantors and the Bank, as thereafter
amended, including on the date hereof (the "Credit Agreement"). All amounts
outstanding hereunder, including principal, interest and fees, shall be due and
payable on the Action Date. As used herein, Action Date shall mean the earliest
to occur of the following:
(a) April 30, 1998;
(b) the completion of the "Special Asset Sale" referred to in the
Sixth Amendment to Loan Agreement dated January 29, 1998 (the
"Sixth Amendment"); or
(c) the date on which the "Sale Agreement" referred to in the
Sixth Amendment is canceled, terminated or made ineffective.
The Borrowers shall pay interest on the unpaid principal balance
hereof from time to time outstanding from the date hereof at the rate or rates
per annum specified by the Borrowers pursuant to Section 4.1(a) of, or as
otherwise provided in, the Credit Agreement.
Upon the occurrence and during the continuation of an Event of
Default, the Borrowers shall pay interest on the entire principal amount of the
then outstanding Revolving Credit Loans evidenced by this Revolving Credit Note
at an increased rate of interest as more fully set forth in Section 4.3 of the
Credit Agreement. Such interest rate will accrue before and after any judgment
has been entered.
Interest on this Revolving Credit Note will be payable as set forth
in Section 5.2 of the Credit Agreement
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on the Action Date and at such other times as are specified in the Credit
Agreement.
Except as otherwise provided in the Credit Agreement, any payment or
action to be made or taken hereunder shall be stated to be or become due on an
day which is not a Business Day, such payment or action shall be extended to the
next succeeding Business Day unless such Business Day falls in the next calendar
month, in which case such Euro-Rate Interest Period shall end on the next
preceding Business Day.
Subject to the provisions of the Credit Agreement, payments of both
principal and interest shall be made without setoff, counterclaim or other
deduction of any nature at the office of the Bank located at One PNC Plaza,
Fifth Avenue & Wood Street, Pittsburgh, Pennsylvania 15265, in lawful money of
the United States of American in immediately available funds.
This Note is one of the Revolving Credit Notes referred to in, and
is entitled to the benefits of, the Credit Agreement and other Loan Documents,
including the representations, warranties, covenants, conditions, security
interests or Liens contained or granted therein. The Credit Agreement among
other things contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayment, in certain
circumstances, on account of principal hereof prior to maturity upon the terms
and conditions therein specified. Failure to pay any amount due hereunder on the
Action Date shall constitute an Event of Default under Section 9.1(a) of the
Credit Agreement.
All capitalized terms used herein shall, unless otherwise defined
herein, have the same meanings given to such terms in the Credit Agreement.
Except as otherwise provided in the Credit Agreement, the Borrowers
waive presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note and the Credit Agreement.
This Note shall bind the Borrowers and their respective successors
and assigns, and the benefits hereof shall inure to the benefit of the Bank and
its successors and assigns. All references herein to the "Borrowers" and the
"Bank" shall be deemed to apply to the Borrower and the Bank, respectively, and
their respective successors and assigns.
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This Note and any other documents delivered in connection herewith
and the rights and obligations of the parties hereto and thereto shall for all
purposes be governed by and construed and enforced in accordance with the
internal laws of the Commonwealth of Pennsylvania without giving effect to its
conflicts of law principles.
EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD, TO APPEAR FOR AND CONFESS JUDGMENT
AS OF ANY TERM AGAINST SUCH BORROWER FOR SUCH SUMS AS ARE DUE, IN EITHER CASE
WITH OR WITHOUT DECLARATION, WITH COSTS OF SUIT, RELEASE OF ERRORS, WITHOUT STAY
OF EXECUTION AND WITH AN AMOUNT NOT TO EXCEED THE LESSER OF $2000 OR TWO PERCENT
(2%) OF THE AMOUNT OF SUCH JUDGMENT ADDED FOR ATTORNEY'S FEES FOR COLLECTION. IF
A COPY OF THIS AGREEMENT, VERIFIED BY AFFIDAVIT OF THE BANK OR SOMEONE ON BEHALF
OF THE BANK, SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO
FILE THE ORIGINAL OF THIS NOTE AS A WARRANT OF ATTORNEY. NO SINGLE EXERCISE OF
THE FOREGOING WARRANT OF ATTORNEY TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST
THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE
INVALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE
EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT,UNTIL ALL OF THE
OBLIGATION HAVE BEEN SATISFIED IN FULL AND THIS AGREEMENT SHALL BE SUFFICIENT
WARRANT THEREFOR.
EACH BORROWER HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID
PROCEEDINGS, WAIVES STAY OF EXECUTION AND EXTENSION OF TIME OF PAYMENT, AND
WAIVES ALL EXEMPTIONS FROM LEVY AND SALE OF ANY PROPERTY THAT NOW IS OR
HEREAFTER MAY BE EXEMPTED BY LAW.
Each Guarantor consents to the execution and delivery of this Note
and agrees that the obligations evidenced hereby shall be "Guaranteed
Indebtedness" under the Guaranty Agreement.
THIS AMENDED AND RESTATED REVOLVING CREDIT NOTE REPLACES AND
SUPERSEDES THE REVOLVING CREDIT NOTE DATED FEBRUARY 27, 1998 IN THE PRINCIPAL
AMOUNT OF $700,00 (THE "PRIOR NOTE"). TO THE EXTENT THAT THE PRINCIPAL BALANCE
OF THIS NOTE INCLUDES THE BORROWER'S INDEBTEDNESS HITHERTO EVIDENCED BY THE
PRIOR NOTE, THIS NOTE (I) MERELY RE-EVIDENCES THE INDEBTEDNESS HITHERTO
EVIDENCED BY THE PRIOR NOTE, (II) IS GIVEN AS SUBSTITUTION FOR, AND NOT AS
PAYMENT OF, THE PRIOR NOTE AND (III) IS IN NO WAY INTENDED TO CONSTITUTE A
NOVATION OF THE PRIOR NOTE. BORROWERS HEREBY AGREE THAT THIS NOTE SHALL IN ALL
RESPECTS TAKE THE PLACE OF AND INCLUDE ANY PRINCIPAL AMOUNT OF THE PRIOR NOTE.
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IN WITNESS WHEREOF, the undersigned has executed this Note by its
duly authorized officers with the intention that it constitute a sealed
instrument.
APOGEE, INC., a Delaware
corporation, and each of the
other Borrowers and Guarantors
listed on Schedule 6.1(c)
By:
--------------------------
[Name],
the [Title] of each
----------
of the Borrowers and
Guarantors listed on Schedule
6.1(c)
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REVOLVING CREDIT NOTE
$600,000 Philadelphia, Pennsylvania
March 31, 1998
FOR VALUE RECEIVED, the undersigned, APOGEE, INC., a Delaware
corporation and each Subsidiary identified on the attached Schedule 6.1(c)
(collectively, the "Borrowers") hereby promise, jointly and severally, to pay to
the order of PNC BANK, NATIONAL ASSOCIATION (the "Bank") the principal sum of
Six Hundred Thousand U.S. Dollars (U.S. $600,000). This Revolving Credit Note
evidences each Borrower's obligation to repay a Revolving Credit Loan made by
the Bank on this date to the Borrowers pursuant to Section 2 of the Credit
Agreement dated April 11, 1996 by and among the Borrowers, the Guarantors and
the Bank (as thereafter amended, including on the date hereof the "Credit
Agreement"). All amounts outstanding hereunder, including principal, interest
and fees, shall be due and payable on the Action Date. As used herein, Action
Date shall mean the earliest to occur of the following:
(a) April 30, 1998;
(b) the completion of the "Special Asset Sale" referred to in the
Sixth Amendment to Loan Agreement dated January 29, 1998 (the "Sixth
Amendment"); or
(c) the date on which the "Sale Agreement" referred to in the Sixth
Amendment is canceled, terminated or made ineffective.
The Borrowers shall pay interest on the unpaid principal balance
hereof from time to time outstanding from the date hereof at the rate or rates
per annum specified by the Borrowers pursuant to Section 4.1(a) of, or as
otherwise provided in, the Credit Agreement.
Upon the occurrence and during the continuation of an Event of
Default, the Borrowers shall pay interest on the entire principal amount of the
then outstanding Revolving Credit Loans evidenced by this Revolving Credit Note
at an increased rate of interest as more fully set forth in Section 4.3 of the
Credit Agreement. Such interest rate will accrue before and after any judgment
has been entered.
Interest on this Revolving Credit Note will be payable as set forth
in Section 5.2 of the Credit Agreement on the Action Date and at such other
times as are specified in the Credit Agreement.
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Except as otherwise provided in the Credit Agreement, any payment or
action to be made or taken hereunder shall be stated to be or become due on an
day which is not a Business Day, such payment or action shall be extended to the
next succeeding Business Day unless such Business Day falls in the next calendar
month, in which case such Euro-Rate Interest Period shall end on the next
preceding Business Day.
Subject to the provisions of the Credit Agreement, payments of both
principal and interest shall be made without setoff, counterclaim or other
deduction of any nature at the office of the Bank located at One PNC Plaza,
Fifth Avenue & Wood Street, Pittsburgh, Pennsylvania 15265, in lawful money of
the United States of American in immediately available funds.
This Revolving Credit Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement and
other Loan Documents, including the representations, warranties, covenants,
conditions, security interests or Liens contained or granted therein. The Credit
Agreement among other things contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayment, in certain circumstances, on account of principal hereof prior to
maturity upon the terms and conditions therein specified. Failure to pay any
amount due hereunder on the Action Date shall constitute an Event of Default
under Section 9.1(a) of the Credit Agreement.
All capitalized terms used herein shall, unless otherwise defined
herein, have the same meanings given to such terms in the Credit Agreement.
Except as otherwise provided in the Credit Agreement, the Borrowers
waive presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Revolving Credit Note and the Credit Agreement.
This Revolving Credit Note shall bind the Borrowers and their
respective successors and assigns, and the benefits hereof shall inure to the
benefit of the Bank and its successors and assigns. All references herein to the
"Borrowers" and the "Bank" shall be deemed to apply to the Borrower and the
Bank, respectively, and their respective successors and assigns.
This Revolving Credit Note and any other documents delivered in
connection herewith and the rights and obligations of the parties hereto and
thereto shall for all
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purposes be governed by and construed and enforced in accordance with the
internal laws of the Commonwealth of Pennsylvania without giving effect to its
conflicts of law principles.
EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD, TO APPEAR FOR AND CONFESS JUDGMENT
AS OF ANY TERM AGAINST SUCH BORROWER FOR SUCH SUMS AS ARE DUE, IN EITHER CASE
WITH OR WITHOUT DECLARATION, WITH COSTS OF SUIT, RELEASE OF ERRORS, WITHOUT STAY
OF EXECUTION AND WITH AN AMOUNT NOT TO EXCEED THE LESSER OF $2000 OR TWO PERCENT
(2%) OF THE AMOUNT OF SUCH JUDGMENT ADDED FOR ATTORNEY'S FEES FOR COLLECTION. IF
A COPY OF THIS AGREEMENT, VERIFIED BY AFFIDAVIT OF THE BANK OR SOMEONE ON BEHALF
OF THE BANK, SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO
FILE THE ORIGINAL OF THIS NOTE AS A WARRANT OF ATTORNEY. NO SINGLE EXERCISE OF
THE FOREGOING WARRANT OF ATTORNEY TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST
THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE
INVALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE
EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT,UNTIL ALL OF THE
OBLIGATION HAVE BEEN SATISFIED IN FULL AND THIS AGREEMENT SHALL BE SUFFICIENT
WARRANT THEREFOR.
EACH BORROWER HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID
PROCEEDINGS, WAIVES STAY OF EXECUTION AND EXTENSION OF TIME OF PAYMENT, AND
WAIVES ALL EXEMPTIONS FROM LEVY AND SALE OF ANY PROPERTY THAT NOW IS OR
HEREAFTER MAY BE EXEMPTED BY LAW.
Each Guarantor consents to the execution and delivery of this
Revolving Credit Note and agrees that the obligations evidenced hereby shall be
"Guaranteed Indebtedness" under the Guaranty Agreement.
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19
IN WITNESS WHEREOF, the undersigned has executed this Revolving
Credit Note by its duly authorized officers with the intention that it
constitute a sealed instrument.
APOGEE, INC., a Delaware
corporation, and each of the
other Borrowers and Guarantors
listed on Schedule 6.1(c)
By:
--------------------------
[Name],
the [Title] of each
----------
of the Borrowers and
Guarantors listed on Schedule
6.1(c)
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