INTERCOMPANY NOTE
Dated: April 6, 1998
FOR VALUE RECEIVED, the undersigned, The Xxxxxxx Company, Inc., a
Delaware corporation (the "PAYOR"), hereby promises to pay to the order of
Sunbeam Corporation, a Delaware corporation (the "PAYEE"), on demand, any and
all Indebtedness (as defined in the Credit Agreement referred to below)
(including interest thereon) owed to the Payee by the Payor from time to time.
The undersigned agrees that the accounts of the Payee shall be "prima
facie" evidence of Indebtedness (including interest thereon) owed to the
Payee by the undersigned and the amounts repaid by the undersigned to the
Payee. All advances made by the Payee to the Payor hereunder, and all
payments made on account of principal and interest hereof, shall be recorded
by the Payee, and, prior to any transfer hereof, shall be endorsed on the
schedule attached hereto which is part of this Intercompany Note.
The undersigned also agrees to pay on demand all costs and expenses
(including reasonable fees and expenses of counsel) incurred by the Payee in
enforcing this Intercompany Note.
This Note is one of the Intercompany Agreements referred to in a Pledge
and Security Agreement (as defined in, and entered into pursuant to the
Credit Agreement dated as of March 30, 1998 (as amended, supplemented or
modified from time to time, the "CREDIT AGREEMENT") among Sunbeam
Corporation, the Subsidiary Borrowers referred to therein, the Lenders party
thereto, Xxxxxx Xxxxxxx Senior Funding, Inc., as Syndication Agent, Bank of
America National Trust and Savings Association, as Documentation Agent and
First Union National Bank, as Administrative Agent). Capitalized terms used
in this Intercompany Note and not otherwise defined have the respective
meanings assigned to them in such Pledge and Security Agreement or the Credit
Agreement.
If at any time demand is made against the Payor under, and pursuant to
the terms of, any guaranty executed by the Payor in connection with the
Secured Obligations (as defined in the Pledge and Security Agreement), this
Intercompany Note, and the payment obligations of the Payor evidenced hereby,
shall therewith be null and void and the Payee shall be deemed to have
contributed such obligations to the capital of the Payor.
The Indebtedness evidenced by this Intercompany Note is subordinate and
subject in right of payment to the prior payment in full of the Secured
Obligations in the manner and to the extent set forth below:
(a) In the event of (i) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Payor or to its
creditors as such, or to its properties or assets, or (ii) any liquidation,
dissolution or other winding-up of the Payor, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy, or (iii)
any assignment for the benefit of creditors or any other marshaling of assets
or liabilities of the Payor, then and in any such event the holders of
Secured Obligations shall be entitled to receive payment in full of all
amounts due on or to become due on or in respect of Secured Obligations then
outstanding, in cash or in any other manner acceptable to the holders of
Secured Obligations, before the holder is entitled to receive any payment or
distribution of any kind or character on account of principal of or interest
on this Intercompany Note, and to that end the holders of Secured Obligations
shall be entitled to receive, for application to the payment thereof, any
payment or distribution of assets of the Payor of any kind or character
including, without limitation, securities that are subordinated in right of
payment to all Secured Obligations to substantially the same extent as, or to
a greater extent than, this Intercompany Note, that may be payable or
deliverable in respect of this Intercompany Note in any such case,
proceeding, dissolution, liquidation or other winding-up or event referred to
in clauses (i) through (iii) above.
(b) In the event that the Payee shall receive any payment or
distribution of assets of the Payor of any kind or character in respect of
principal of or interest on this Intercompany Agreement in contravention of
subsection (a) hereof, then and in such event such payment or distribution
shall be received and held by the Payee in trust for the holders of the
Secured Obligations and shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Payor
in trust for the holders of, and for application to the payment of, all
Secured Obligations remaining unpaid, to the extent necessary to pay all
Secured Obligations in full, in cash or in any other manner acceptable to the
holders of Secured Obliga-
tions, after giving effect to any concurrent payment or distribution to or
for the holders of Secured Obligations.
The undersigned hereby waives presentment for payment, demands, notice
of dishonor and protest of this Intercompany Note and further agrees that
none of its terms or provisions may be waived, altered, modified or amended
except as the Payee may consent in a writing duly signed for and on its
behalf.
No failure or delay on the part of the Payee in exercising any of its
rights, powers or privileges hereunder shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise of any right, power or privilege. The remedies provided herein are
cumulative and are not exclusive of any remedies provided by law.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
The Xxxxxxx Company, Inc.
Address:
By: Xxxxxx X. Xxxxx
Title: Vice President
