Exhibit 10.3
2002 TERM NOTE
$________________ New York, New York
November __, 2002
FOR VALUE RECEIVED, the undersigned, Q.E.P. CO., INC., a Delaware
corporation with its chief executive office and principal place of business at
0000 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, X.X.X. - O'TOOL, INC., a Nevada
corporation with its chief executive office and principal place of business at
0000 Xxxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000, XXXXXX TOOL CORPORATION, an Indiana
corporation with its chief executive office and principal place of business at
0000 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, XXXXXXX CONSOLIDATED INDUSTRIES,
INC., a Delaware corporation with its chief executive office and principal place
of business at 0000 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, XXXXXXX HOLDING
INTERNATIONAL, INC., a Delaware corporation with its chief executive office and
principal place of business at 0000 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000,
XXXXXXX XXXXXXX XXXXXX LIMITED, an entity organized in Ontario, Canada with its
chief executive office and principal place of business at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx, Xxxxxx X0X0X0, X.X.X. STONE HOLDINGS, INC., a Florida
corporation with a place of business at 0000 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx
00000, X.X.X. ZOCALIS HOLDING L.L.C., a Delaware limited liability company with
a place of business at 0000 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, XXXXXXX
XXXXX KK, an entity organized in Japan with its chief executive office and
principal place of business at 0000 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000,
XXXXXXX XXXXXXX X.X., xx xxxxxx xxxxxxxxx xx Xxx Xxxxxxxxxxx with its chief
executive office and principal place of business at 0000 XX Xxxxxxxxxx, X.X. Xxx
00, Xxxxxxxxxxx, Xxx Xxxxxxxxxxx, XXXXXXX X. X. LIMITED , an entity organized in
England with its chief executive office and principal place of business at Xxxx
00, Xxxxxxxxxx Industrial Estate, Bailiff Bridge, Brighouse, West Yorkshire,
England, HD6 4EA, XXXXXXX GERMANY GmbH, an entity organized in Germany with its
chief executive office and principal place of business at Xxxxxxxxxxxxxxx 00,
00000 Xxxxxxxxx-Xxxxxxx, Xxxxxxx, XXXXXXX S.A.R.L. , an entity organized in
France with its chief executive office and principal place of business at 00 xxx
xx xx Xxxx, 00000 Xxxxxxx, Xxxxxx, BOIARDI PRODUCTS CORPORATION, an Ohio
corporation with its chief executive office and principal place of business at
000 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000, Q.E.P. AUST. PTY. LIMITED, an
entity organized in Australia with a place of business at 00-00 Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx 0000, X.X.X. CHILE LIMITADA, an entity organized in Chile
with a place of business at Av. Recoleta 0000, Xxxxxxxxxx, Xxxxxxxx, Xxxxx,
X.X.X HOLDING B.V. , an entity organized in the Netherlands with its chief
executive office and principal place of business at 0000 XX Xxxxxxxxxx,
Xxxxxxxxxxxx, Xxx Xxxxxxxxxxx, X.X.X. CO. NEW ZEALAND LIMITED, an entity
organized in New Zealand with a place of business at 00 Xxxxxxx Xxxxx, Xxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxxxxx, and Q.E.P. ZOCALIS S.R.L., an entity organized in
Argentina with its chief executive office and principal place of business at
1607 Xxxxx Xxxxxxx, Buenos Aries, Argentina (all of the foregoing collectively
called the "Borrower") jointly and severally promise to pay to the order of
("Lender"), at such other place as Lender may from time to time designate in
writing, the principal sum of ______ ($___) (the "Principal Amount"), pursuant
to that certain Second Amended and Restated Loan Agreement dated of even date
herewith (as amended and in effect from time to time, the "Loan Agreement"),
together with (i) interest at the rate and in the
manner provided in the Loan Agreement; (ii) all fees, premiums and charges which
may become due under the Loan Agreement or any of the other Loan Documents (as
defined in the Loan Agreement); (iii) any costs and expenses, including
reasonable attorneys' and appraiser's fees incurred in the collection of this
Note or the enforcement of the Loan Agreement or any of the other Loan
Documents, foreclosure thereunder or in any litigation or controversy arising
from or connected with this Note, or the Loan Agreement or any of the other Loan
Documents; and (iv) all taxes or duties, other than income taxes, assessed upon
said sum against Lender or upon the debt evidenced hereby. All amounts owing
under this Note and interest thereon shall be payable in legal tender of the
United States of America. Capitalized terms used herein and not otherwise
defined shall have the meanings given to them in the Loan Agreement.
Equal quarterly payments of principal in the amount of ___________
($_______ be due and payable commencing on January 1, 2003 and continuing on the
first day of each of the three succeeding quarters thereafter with the last of
such payments due on October 1, 2003. Equal quarterly payments of principal in
the amount of _________Dollars ($__) shall be due and payable commencing on
January 1, 2004 and continuing on the first day of each succeeding quarter
thereafter until October 1, 2007 (the "Maturity Date"). On the Maturity Date,
Borrower shall pay in full the outstanding Principal Amount together with all
interest accrued thereon.
Interest on the Principal Amount shall be computed and shall be payable at
the rate and in the manner as provided in the Loan Agreement until all of said
Principal Xxxxxx has been fully paid, whether before or after the Maturity Date,
by acceleration or otherwise, and whether or not any judgment is obtained
hereon.
In the event that Xxxxxx has not received, within fifteen (15) days of its
due date, any installment of the Principal Amount and interest (upon the
Maturity Date or otherwise), or payment with respect to any other payment due
under this Note, Borrower shall be subject to a late charge equal to two percent
(2%) of such amount due.
Upon the failure by Borrower to pay principal or interest under this Note
when due and payable, or an Event of Default as defined in the Loan Agreement or
in any other Loan Documents, Lender may, at its option, accelerate Xxxxxxxx's
obligations hereunder and declare the entire unpaid Principal Amount, together
with accrued interest and all other amounts then due which are evidenced by this
Note, to be immediately due and payable, without the necessity for demand or
additional notice. In addition, upon the occurrence of such default or Event of
Default or after the Maturity Date, all principal and accrued but unpaid
interest shall bear interest until paid in full, payable on demand at the
Default Rate. Failure to exercise these options shall not constitute a waiver of
the right to exercise the same in the event of any subsequent default.
Borrower may prepay the 2002 Term Loan only as permitted in the Loan
Agreement.
Notwithstanding any provisions of this Note, it is the understanding and
agreement of Borrower and Lender that the maximum rate of interest to be paid by
Borrower to Lender shall not exceed the highest of the maximum rate of interest
permissible to be charged by Lender under applicable laws. Any amount paid in
excess of such rate shall be deemed to be a payment
in reduction of principal except to the extent that such amount is in excess of
the then outstanding Principal Amount, in which event such excess shall be
returned to the Borrower.
This Note shall be governed by and construed in accordance with the laws of
the State of Connecticut. This Note shall bind the successors and assigns of
Xxxxxxxx, and shall inure to the benefit of Xxxxxx and its successors and
assigns. This Note may not be changed or terminated orally, but only by an
agreement in writing signed by the party against whom enforcement of any such
change or termination is sought.
Whenever in this Note words of any gender appear, they shall be deemed to
apply equally to any other gender. Whenever used in this Note, the plural shall
include the singular and the singular shall include the plural, as the context
shall require. In the event that Borrower consists of more than one person or
entity, the obligations hereunder shall be joint and several.
TO INDUCE LENDER TO ENTER INTO THE COMMERCIAL LOAN TRANSACTION EVIDENCED BY
THIS NOTE, THE LOAN AGREEMENT, AND ANY OTHER LOAN DOCUMENTS EVIDENCING OR
SECURING THE SAME, XXXXXXXX AGREES THAT THIS IS A COMMERCIAL TRANSACTION AND NOT
A CONSUMER TRANSACTION, AND WAIVES ANY RIGHT TO NOTICE AND A HEARING AND
AUTHORIZES XXXXXX'S ATTORNEY TO ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT
COURT ORDER, PROVIDED THE COMPLAINT SHALL SET FORTH A COPY OF THIS WAIVER AND
WAIVES ANY CLAIM IN TORT, CONTRACT OR OTHERWISE AGAINST XXXXXX'S ATTORNEY WHICH
MAY ARISE OUT OF SUCH ISSUANCE OF A WRIT FOR A PREJUDGMENT REMEDY WITHOUT COURT
ORDER. XXXXXXXX ACKNOWLEDGES AND STIPULATES THAT SUCH WAIVER AND AUTHORIZATION
GRANTED ABOVE ARE MADE KNOWINGLY AND FREELY AND AFTER FULL CONSULTATION WITH
COUNSEL. SPECIFICALLY, XXXXXXXX RECOGNIZES AND UNDERSTANDS THAT THE EXERCISE OF
XXXXXX'S RIGHTS DESCRIBED ABOVE MAY RESULT IN THE ATTACHMENT OF OR LEVY AGAINST
XXXXXXXX'S PROPERTY, AND SUCH WRIT FOR A PREJUDGMENT REMEDY WILL NOT HAVE THE
PRIOR WRITTEN APPROVAL OR SCRUTINY OF A COURT OF LAW OR OTHER JUDICIAL OFFICER
NOR WILL BORROWER HAVE THE RIGHT TO ANY NOTICE OR PRIOR HEARING WHERE XXXXXXXX
MIGHT CONTEST SUCH A PROCEDURE. THE INTENT OF BORROWER IS TO GRANT TO LENDER FOR
GOOD AND VALUABLE CONSIDERATION THE RIGHT TO OBTAIN SUCH A PREJUDGMENT REMEDY
AND TO EXPRESS ITS BELIEF THAT ANY SUCH PREJUDGMENT REMEDY OBTAINED IS VALID AND
CONSTITUTIONAL. FURTHER, TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, BORROWER
HEREBY WAIVES DEMAND, PRESENTMENT FOR PAYMENT, PROTEST, NOTICE OF PROTEST,
NOTICE OF DISHONOR, DILIGENCE IN COLLECTION, NOTICE OF NONPAYMENT OF THIS NOTE
AND ANY AND ALL NOTICES OF A LIKE NATURE.
BORROWER HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION, OR
CAUSE OF ACTION (1) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY
OTHER DOCUMENTS, INSTRUMENTS OR AGREEMENTS CONTEMPLATED TO BE EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO OR THERETO,
OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS NOTE OR ANY OTHER DOCUMENTS,
INSTRUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
THE BORROWER HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND XXXXXX MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF EACH OF THEM TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
This Note is one of the 2002 Term Notes referred to in, entitled to the
benefits of and subject to the terms and conditions of the Loan Agreement.
DOMESTIC ADVANCES NOTE
$___ New York, New York
November __, 2002
Q.E.P. CO., INC., a Delaware corporation with its chief executive
office and principal place of business at 0000 Xxxxxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxx 00000, X.X.X. - O'TOOL, INC., a Nevada corporation with its chief
executive office and principal place of business at 00000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxx 00000, XXXXXX TOOL CORPORATION, an Indiana corporation with
its chief executive office and principal place of business at 11th Street and
Xxxxxx Avenue, Marion, Indiana 46952, XXXXXXX CONSOLIDATED INDUSTRIES, INC., a
Delaware corporation with its chief executive office and principal place of
business at 000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxx, Xxxx xx Xxxxxxxx, Xxxxxxxxxx
00000, XXXXXXX HOLDING INTERNATIONAL, INC., a Delaware corporation with its
chief executive office and principal place of business at 000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxx xx Xxxxxxxx, Xxxxxxxxxx 00000, XXXXXXX XXXXXXX XXXXXX LIMITED,
an Ontario corporation with its chief executive office and principal place of
business at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, Xxxxxx X0X0X0, X.X.X. STONE
HOLDINGS, INC., a Florida corporation with a place of business at 0000 Xxxxxxx
Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, X.X.X. ZOCALIS HOLDING LLC, with a place of
business at 0000 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000 and BOIARDI PRODUCTS
CORPORATION, an Ohio corporation with its chief executive office and principal
place of business at 000 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000 (all of the
foregoing hereinafter collectively called the "Borrower" unless otherwise
specifically indicated), for value received, jointly and severally promise to
pay to the order of the "Lender", the principal sum of _____ ($___), or such
lesser amount as has been advanced and remains outstanding under this Note, with
interest computed as set forth in a certain Second Amended and Restated Loan
Agreement, dated as of even date herewith (as amended from time to time the
"Loan Agreement") from the date hereof until this Note is fully paid.
All payments will be applied first to the payment of late charges, then
to accrued and unpaid interest and the balance on account of the unpaid
principal of this Note.
All sums due under this Note shall be payable together with all taxes
and other charges required under the Loan Agreement.
The happening of any of the following events or conditions shall
constitute an "Event of Default" under this Note:
1. Failure to make when due any payment of principal or interest or any
sum due under this Note when the same shall be due and payable.
2. The occurrence of an Event of Default or notice of termination under
the Loan Agreement.
Upon and after the occurrence and during the continuance of an Event of
Default, the whole of said indebtedness, both principal and interest, and
including any other sums which may
become due under this Note, shall, at the option of the holder of this Note,
immediately become due and payable without presentment, demand, protest, notice
of protest, or other notice or notice of dishonor of any kind, all of which are
hereby expressly waived by the Borrower.
The Borrower agrees that no delay or failure on the part of the holder
in exercising any power, privilege, remedy, option or right under this Note
shall operate as a waiver thereof or of any other power, privilege, remedy or
right; nor shall any single or partial exercise of any power, privilege, remedy,
option or right hereunder preclude any other or future exercise thereof or the
exercise of any other power, privilege, remedy, option or right. The rights and
remedies expressed herein are cumulative, and may be enforced successively,
alternately, or concurrently and are not exclusive of any rights or remedies
which holder may or would otherwise have under the provisions of all applicable
laws, and under the provisions of all agreements between the Borrower and the
Lender.
The Borrower hereby waives presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, assents to any extension or
postponement of the time of payment or any other indulgence and/or to the
addition or release of any party or person primarily or secondarily liable.
The Borrower gives the Lender a lien and right of setoff for all of
Xxxxxxxx's liabilities upon and against the Borrower's deposits, credits and
property, now or hereafter in the possession or control of the Lender or in
transit to it. The Lender may, at any time, apply the same or any part thereof,
to any of the Borrower's liability, though unmatured, without notice and without
first resorting to any other collateral.
This Note shall be governed by and construed in accordance with the
laws of the State of Connecticut.
TO INDUCE LENDER TO ENTER INTO THE COMMERCIAL LOAN TRANSACTION
EVIDENCED BY THIS NOTE, THE LOAN AGREEMENT, AND ANY OTHER LOAN DOCUMENTS
EVIDENCING OR SECURING THE SAME, XXXXXXXX AGREES THAT THIS IS A COMMERCIAL
TRANSACTION AND NOT A CONSUMER TRANSACTION, AND WAIVES ANY RIGHT TO NOTICE AND A
HEARING AND AUTHORIZES XXXXXX'S ATTORNEY TO ISSUE A WRIT FOR A PREJUDGMENT
REMEDY WITHOUT COURT ORDER, PROVIDED THE COMPLAINT SHALL SET FORTH A COPY OF
THIS WAIVER AND WAIVES ANY CLAIM IN TORT, CONTRACT OR OTHERWISE AGAINST XXXXXX'S
ATTORNEY WHICH MAY ARISE OUT OF SUCH ISSUANCE OF A WRIT FOR A PREJUDGMENT REMEDY
WITHOUT COURT ORDER. BORROWER FURTHER WAIVES ANY RIGHT IT MAY HAVE TO REQUEST
THAT LENDER POST A BOND IN CONNECTION WITH ANY PREJUDGEMENT REMEDY. XXXXXXXX
ACKNOWLEDGES AND STIPULATES THAT SUCH WAIVER AND AUTHORIZATION GRANTED ABOVE ARE
MADE KNOWINGLY AND FREELY AND AFTER FULL CONSULTATION WITH COUNSEL.
SPECIFICALLY, XXXXXXXX RECOGNIZES AND UNDERSTANDS THAT THE EXERCISE OF XXXXXX'S
RIGHTS DESCRIBED ABOVE MAY RESULT IN THE ATTACHMENT OF OR LEVY AGAINST
XXXXXXXX'S PROPERTY, AND SUCH WRIT FOR A
PREJUDGMENT REMEDY WILL NOT HAVE THE PRIOR WRITTEN APPROVAL OR SCRUTINY OF A
COURT OF LAW OR OTHER JUDICIAL OFFICER NOR WILL BORROWER HAVE THE RIGHT TO ANY
NOTICE OR PRIOR HEARING WHERE XXXXXXXX MIGHT CONTEST SUCH A PROCEDURE. THE
INTENT OF BORROWER IS TO GRANT TO LENDER FOR GOOD AND VALUABLE CONSIDERATION THE
RIGHT TO OBTAIN SUCH A PREJUDGMENT REMEDY AND TO EXPRESS ITS BELIEF THAT ANY
SUCH PREJUDGMENT REMEDY OBTAINED IS VALID AND CONSTITUTIONAL.
BORROWER HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (1) ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER DOCUMENTS, INSTRUMENTS OR
AGREEMENTS CONTEMPLATED TO BE EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR
THE TRANSACTIONS RELATED HERETO OR THERETO, OR (2) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO THIS NOTE OR ANY OTHER DOCUMENTS, INSTRUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND THE BORROWER HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND XXXXXX MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH OF THEM
TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
This Note is one of the Revolving Promissory Notes referred to in,
entitled to the benefits of, and subject to the terms and conditions of the Loan
Agreement.
AMENDED AND RESTATED FOREIGN ADVANCES NOTE
$____ New York, New York
November __, 2002
XXXXXXX JAPAN KK, an entity organized in Japan with its chief executive
office and principal place of business at 0000 Xxxxxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxx 00000, XXXXXXX X. X. LIMITED, an entity organized in England with its
chief executive office and principal place of business at Xxxx 00, Xxxxxxxxxx
Industrial Estate, Bailiff Bridge, Brighouse, West Yorkshire, England, HD6 4EA,
XXXXXXX GERMANY GmbH, an entity organized in Germany with its chief executive
office and principal place of business at Xxxxxxxxxxxxxxx 00, 00000
Xxxxxxxxx-Xxxxxxx, Xxxxxxx, XXXXXXX S.A.R.L., an entity organized in France with
its chief executive office and principal place of business at 00 xxx xx xx Xxxx,
00000 Xxxxxxx, Xxxxxx, X.X.X. AUST. PTY. LIMITED, an entity organized in
Australia with a place of business at 00-00 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx
0000, X.X.X. CHILE LIMITADA, an entity organized in Chile with a place of
business at Av. Recoleta 4464, Huechuraba, Santiago, Chile, Q.E.P. HOLDING B.V.,
and entity organized in the Netherlands with its chief executive officer and
principal place of business at 0000 XX Xxxxxxxxxx, Xxxxxxxxxxxx, Xxx
Xxxxxxxxxxx, Q.E.P. CO. NEW ZEALAND LIMITED, an entity organized in New Zealand
with a place of business at 00 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxxxxx, X.X.X. ZOCALIS S.R.L., an entity organized in Argentina with its chief
executive office and principal place of business at 0000 Xxxxx Xxxxxxx, Xxxxxx
Xxxxx, Xxxxxxxxx, (all of the foregoing hereinafter collectively called the
"Borrower" unless otherwise specifically indicated), for value received, jointly
and severally promise to pay to the order of the "Lender" at its office or at
such other place as the holder of this Note may from time to time designate in
writing, on or before the Maturity Date (as such term is defined in the Loan
Agreement), the principal sum of ___ ($__ USD), or such lesser amount as has
been advanced and remains outstanding under this Note, with interest computed as
set forth in the Second Amended and Restated Loan Agreement, dated as of even
date herewith (as amended and in effect from time to time, the "Loan Agreement")
from the date hereof until this Note is fully paid.
All payments will be applied first to the payment of late charges, then to
accrued and unpaid interest and the balance on account of the unpaid principal
of this Note. All principal together with accrued but unpaid interest and all
other outstanding fees and charges shall be due and payable on the Maturity Date
(as defined in the Loan Agreement).
All sums due under this Note shall be payable together with all taxes and
other charges required under the Loan Agreement.
The happening of any of the following events or conditions shall constitute
an "Event of Default" under this Note:
1. Failure to make when due any payment of principal or interest or any sum
due under this Note when the same shall be due and payable.
2. The occurrence of an Event of Default or notice of termination under the
Loan Agreement.
Upon and after the occurrence and during the continuance of an Event of
Default, the whole of said indebtedness, both principal and interest, and
including any other sums which may become due under this Note, shall, at the
option of the holder of this Note, immediately become due and payable without
presentment, demand, protest, notice of protest, or other notice or notice of
dishonor of any kind, all of which are hereby expressly waived by the Borrower.
The Borrower agrees that no delay or failure on the part of the holder in
exercising any power, privilege, remedy, option or right under this Note shall
operate as a waiver thereof or of any other power, privilege, remedy or right;
nor shall any single or partial exercise of any power, privilege, remedy, option
or right hereunder preclude any other or future exercise thereof or the exercise
of any other power, privilege, remedy, option or right. The rights and remedies
expressed herein are cumulative, and may be enforced successively, alternately,
or concurrently and are not exclusive of any rights or remedies which holder may
or would otherwise have under the provisions of all applicable laws, and under
the provisions of all agreements between the Borrower and the Lender.
The Borrower hereby waives presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, assents to any extension or
postponement of the time of payment or any other indulgence and/or to the
addition or release of any party or person primarily or secondarily liable.
The Borrower gives the Lender a lien and right of setoff for all of
Xxxxxxxx's liabilities upon and against the Borrower's deposits, credits and
property, now or hereafter in the possession or control of the Lender or in
transit to it. The Lender may, at any time, apply the same or any part thereof,
to any of the Borrower's liability, though unmatured, without notice and without
first resorting to any other collateral.
This Note shall be governed by and construed in accordance with the laws of
the State of Connecticut.
This Note is one of the Foreign Advances Notes referred to in, entitled to
the benefits of, and subject to the terms and conditions of the Loan Agreement
and constitutes the amendment and restatement in its entirety of the Foreign
Advances Note of the Borrower to the Lender in the principal amount of $__ dated
November __, 2001 (the "Original Note") and is in substitution therefor and an
amendment and replacement thereof. Nothing herein or in any other document shall
be construed to constitute payment of the Original Note or to release or
terminate any guaranty or any lien, mortgage, pledge or other security interest
in favor of the Lender.
TO INDUCE LENDER TO ENTER INTO THE COMMERCIAL LOAN TRANSACTION EVIDENCED BY
THIS NOTE, THE LOAN AGREEMENT, AND ANY OTHER LOAN DOCUMENTS EVIDENCING OR
SECURING THE SAME, XXXXXXXX AGREES THAT THIS IS A COMMERCIAL TRANSACTION AND NOT
A CONSUMER
TRANSACTION, AND WAIVES ANY RIGHT TO NOTICE AND A HEARING AND AUTHORIZES
XXXXXX'S ATTORNEY TO ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT COURT ORDER,
PROVIDED THE COMPLIANT SHALL SET FORTH A COPY OF THIS WAIVER AND WAIVES ANY
CLAIM IN TORT, CONTRACT OR OTHERWISE AGAINST XXXXXX'S ATTORNEY WHICH MAY ARISE
OUT OF SUCH ISSUANCE OF A WRIT FOR A PREJUDGMENT REMEDY WITHOUT COURT ORDER.
XXXXXXXX ACKNOWLEDGES AND STIPULATES THAT SUCH WAIVER AND AUTHORIZATION GRANTED
ABOVE ARE MADE KNOWINGLY AND FREELY AND AFTER FULL CONSULTATION WITH COUNSEL.
SPECIFICALLY, XXXXXXXX RECOGNIZES AND UNDERSTANDS THAT THE EXERCISE OF XXXXXX'S
RIGHTS DESCRIBED ABOVE MAY RESULT IN THE ATTACHMENT OF OR LEVY AGAINST
XXXXXXXX'S PROPERTY, AND SUCH WRIT FOR A PREJUDGMENT REMEDY WILL NOT HAVE THE
PRIOR WRITTEN APPROVAL OR SCRUTINY OF A COURT OF LAW OR OTHER JUDICIAL OFFICER
NOR WILL BORROWER HAVE THE RIGHT TO ANY NOTICE OR PRIOR HEARING WHERE XXXXXXXX
MIGHT CONTEST SUCH A PROCEDURE. THE INTENT OF BORROWER IS TO GRANT TO LENDER FOR
GOOD AND VALUABLE CONSIDERATION THE RIGHT TO OBTAIN SUCH A PREJUDGMENT REMEDY
AND TO EXPRESS ITS BELIEF THAT ANY SUCH PREJUDGMENT REMEDY OBTAINED IS VALID AND
CONSTITUTIONAL. FURTHER, TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, BORROWER
HEREBY WAIVES DEMAND, PRESENTMENT FOR PAYMENT, PROTEST, NOTICE OF PROTEST,
NOTICE OF DISHONOR, DILIGENCE IN COLLECTION, NOTICE OF NONPAYMENT OF THIS NOTE
AND ANY AND ALL NOTICES OF A LIKE NATURE.
BORROWER HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (1) ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER DOCUMENTS, INSTRUMENTS OR
AGREEMENTS CONTEMPLATED TO BE EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR
THE TRANSACTIONS RELATED HERETO OR THERETO, OR (2) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO THIS NOTE OR ANY OTHER DOCUMENTS, INSTRUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND THE BORROWER HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND XXXXXX MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH OF THEM
TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
This Note is one of the Foreign Notes referred to in, entitled to the
benefits of, and subject to the terms and conditions of the Loan Agreement.
AMENDED AND RESTATED BV NOTE
$__ New York, New York
November __, 2002
XXXXXXX XXXXXXX B.V., an entity organized in The Netherlands with its
chief executive office and principal place of business at 0000 XX Xxxxxxxxxx,
X.X. Box 64, Parallelweg, The Netherlands (the "Borrower"), for value received,
promises to pay to the order of FLEET CAPITAL CORPORATION, a Rhode Island
corporation with an office at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000
(hereinafter referred to as the "Lender"), the principal sum of ___ ($__), or
such lesser amount as has been advanced and remains outstanding under this Note,
with interest computed as set forth in a certain Second Amended and Restated
Loan Agreement, dated as of even date herewith (as amended from time to time the
"Loan Agreement") from the date hereof until this Note is fully paid.
All payments will be applied first to the payment of late charges, then
to accrued and unpaid interest and the balance on account of the unpaid
principal of this Note.
All sums due under this Note shall be payable together with all taxes
and other charges required under the Loan Agreement.
The happening of any of the following events or conditions shall
constitute an "Event of Default" under this Note:
1. Failure to make when due any payment of principal or interest or any
sum due under this Note when the same shall be due and payable.
2. The occurrence of an Event of Default or notice of termination under
the Loan Agreement.
Upon and after the occurrence and during the continuance of an Event of
Default, the whole of said indebtedness, both principal and interest, and
including any other sums which may become due under this Note, shall, at the
option of the holder of this Note, immediately become due and payable without
presentment, demand, protest, notice of protest, or other notice or notice of
dishonor of any kind, all of which are hereby expressly waived by the Borrower.
The Borrower agrees that no delay or failure on the part of the holder
in exercising any power, privilege, remedy, option or right under this Note
shall operate as a waiver thereof or of any other power, privilege, remedy or
right; nor shall any single or partial exercise of any power, privilege, remedy,
option or right hereunder preclude any other or future exercise thereof or the
exercise of any other power, privilege, remedy, option or right. The rights and
remedies expressed herein are cumulative, and may be enforced successively,
alternately, or concurrently and are not exclusive of any rights or remedies
which holder may or would otherwise have under the provisions of all applicable
laws, and under the provisions of all agreements between the Borrower and the
Lender.
The Borrower hereby waives presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, assents to any extension or
postponement of the time of payment or any other indulgence and/or to the
addition or release of any party or person primarily or secondarily liable.
The Borrower gives the Lender a lien and right of setoff for all of
Xxxxxxxx's liabilities upon and against the Borrower's deposits, credits and
property, now or hereafter in the possession or control of the Lender or in
transit to it. The Lender may, at any time, apply the same or any part thereof,
to any of the Borrower's liability, though unmatured, without notice and without
first resorting to any other collateral.
This Note shall be governed by and construed in accordance with the
laws of the State of Connecticut.
This Note constitutes the amendment and restatement in its entirety of
the BV Note of the Borrower to the Lender in the original principal amount of
$__ dated June 14, 1999 (the "Original Note"), and is in substitution therefor
and an amendment and replacement thereof. Nothing herein or in any other
document shall be construed to constitute payment of the Original Note or to
release or terminate any guaranty or any lien, mortgage, pledge or other
security interest in favor of the Lender.
TO INDUCE LENDER TO ENTER INTO THE COMMERCIAL LOAN TRANSACTION
EVIDENCED BY THIS NOTE, THE LOAN AGREEMENT, AND ANY OTHER LOAN DOCUMENTS
EVIDENCING OR SECURING THE SAME, XXXXXXXX AGREES THAT THIS IS A COMMERCIAL
TRANSACTION AND NOT A CONSUMER TRANSACTION, AND WAIVES ANY RIGHT TO NOTICE AND A
HEARING AND AUTHORIZES XXXXXX'S ATTORNEY TO ISSUE A WRIT FOR A PREJUDGMENT
REMEDY WITHOUT COURT ORDER, PROVIDED THE COMPLAINT SHALL SET FORTH A COPY OF
THIS WAIVER AND WAIVES ANY CLAIM IN TORT, CONTRACT OR OTHERWISE AGAINST XXXXXX'S
ATTORNEY WHICH MAY ARISE OUT OF SUCH ISSUANCE OF A WRIT FOR A PREJUDGMENT REMEDY
WITHOUT COURT ORDER. BORROWER FURTHER WAIVES ANY RIGHT IT MAY HAVE TO REQUEST
THAT LENDER POST A BOND IN CONNECTION WITH ANY PREJUDGEMENT REMEDY. XXXXXXXX
ACKNOWLEDGES AND STIPULATES THAT SUCH WAIVER AND AUTHORIZATION GRANTED ABOVE ARE
MADE KNOWINGLY AND FREELY AND AFTER FULL CONSULTATION WITH COUNSEL.
SPECIFICALLY, XXXXXXXX RECOGNIZES AND UNDERSTANDS THAT THE EXERCISE OF XXXXXX'S
RIGHTS DESCRIBED ABOVE MAY RESULT IN THE ATTACHMENT OF OR LEVY AGAINST
XXXXXXXX'S PROPERTY, AND SUCH WRIT FOR A PREJUDGMENT REMEDY WILL NOT HAVE THE
PRIOR WRITTEN APPROVAL OR SCRUTINY OF A COURT OF LAW OR OTHER JUDICIAL OFFICER
NOR WILL BORROWER HAVE THE RIGHT TO ANY NOTICE OR PRIOR HEARING WHERE XXXXXXXX
MIGHT CONTEST SUCH A PROCEDURE. THE INTENT OF BORROWER IS TO GRANT TO LENDER FOR
GOOD AND VALUABLE CONSIDERATION THE RIGHT TO OBTAIN SUCH A PREJUDGMENT REMEDY
AND TO EXPRESS ITS BELIEF THAT ANY SUCH PREJUDGMENT REMEDY OBTAINED IS VALID AND
CONSTITUTIONAL.
BORROWER HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (1) ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER DOCUMENTS, INSTRUMENTS OR
AGREEMENTS CONTEMPLATED TO BE EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR
THE TRANSACTIONS RELATED HERETO OR THERETO, OR (2) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO THIS NOTE OR ANY OTHER DOCUMENTS, INSTRUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND THE BORROWER HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND XXXXXX MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH OF THEM
TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
This Note is the BV Note referred to in, entitled to the benefits of,
and subject to the terms and conditions of the Loan Agreement.
