Exhibit 4.6
AMENDED AND RESTATED
TERM NOTE
$[AMOUNT] Chicago, Illinois
December 31, 2002
FOR VALUE RECEIVED, the undersigned (the "BORROWERS" and each a
"BORROWER") unconditionally promise to pay to the order of [NAME] (the
"LENDER"), at the office of the Lender at [ADDRESS], or at such other place
as the holder of this Term Note (this "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 $[AMOUNT]. This Note is
referred to in and was executed and delivered under the Amended and Restated
Credit Agreement dated as of December 31, 2002 (as such agreement may be
amended, restated, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among the Borrowers, as borrowers, the Lender and the
other lenders party thereto, as lenders, LaSalle Bank National Association, a
national banking association, as administrative agent for the Lenders (in
such capacity, the "ADMINISTRATIVE AGENT") and National City Bank, a national
banking association, as syndication agent for the Lenders (in such capacity,
the "SYNDICATION AGENT", and together with the Administrative Agent, the
"AGENTS"). Capitalized terms used in this Note and not otherwise defined
have the meanings assigned to such terms in the Credit Agreement.
Unless otherwise paid sooner under the provisions of Section 6.2 or 12.2
of the Credit Agreement, the principal indebtedness represented by this Note
is payable [SCHEDULE AND AMOUNT], together with a final principal installment
of the Lender's Percentage of any unpaid principal balance payable on June
30, 2003. No portion of the indebtedness represented by this Note that has
been repaid may be reborrowed.
The Borrowers further promise to pay interest on the outstanding
principal amount of the indebtedness represented by this Note from the date
of this Note until payment in full of such indebtedness at the applicable
rates set forth in Section 4.1 of the Credit Agreement. Except as otherwise
provided in the Credit Agreement, interest is payable quarterly in arrears
not later than the last Business Day of each calendar quarter and is computed
on the basis of a 360-day year for the actual number of days elapsed.
Except as otherwise provided in the Credit Agreement, if payment under
this Note becomes due and payable on a Saturday, Sunday or legal holiday
under the laws of the State of Illinois, the due date of such payment is
extended to the next succeeding Business Day and interest is payable on such
payment during such extension at the rate specified in the Credit Agreement.
In no contingency or event whatsoever will interest charged under this Note,
however such interest may be characterized or computed, exceed the highest
rate permissible under any law that a court of competent jurisdiction, in a
final determination, deems applicable to this Note. In the event that such a
court determines that the Lender has received interest under this Note in
excess of the highest rate applicable to this Note, any such excess interest
collected by the Lender is deemed to have been a repayment of principal and
will be so applied.
Except as otherwise agreed in the Credit Agreement, payments received by
the Lender from the Borrowers on this Note will be applied first to the
payment of interest that is due and payable and only thereafter to the
outstanding principal balance of the indebtedness represented by this Note.
This Note is subject to prepayment at the option of the Borrowers as
provided in the Credit Agreement and mandatory prepayment as provided in the
Credit Agreement. Any such prepayments will be applied in the manner set
forth in the Credit Agreement.
DEMAND, PRESENTMENT, PROTEST AND NOTICE OF NONPAYMENT AND PROTEST ARE
WAIVED BY THE BORROWERS.
This Note supercedes the Third Amended and Restated Term Note dated as
of January 8, 2002 (the "EXISTING NOTE"), made by the Borrowers in favor of
the Lender in the original principal amount of $[AMOUNT]. Execution and
delivery of this Note and any other document executed in connection with this
Note are not intended and should not be construed to (i) have repaid or
otherwise discharged any amount of principal of or interest on the Existing
Note and evidenced hereby, (ii) effect a novation or otherwise release the
obligation of any of the undersigned under or extinguish the debt evidenced
by the Existing Note and evidenced hereby or (iii) release, cancel, terminate
or otherwise impair the status or priority of all or any part of any liens or
security interests granted to the Lender (or any person acting for the
benefit of the Lender) as collateral security for the obligations of any of
the undersigned under or in connection with the debt evidenced by the
Existing Note and evidenced hereby.
This Note has been delivered, and is deemed to have been made, at
Chicago, Illinois and will be interpreted 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 Note will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note is prohibited by or invalid under
applicable law, such provision will be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Note. Whenever in this Note
reference is made to the Lender or the Borrowers, such reference is deemed to
include, as applicable, a reference to their respective successors and
assigns. The provisions of this Note are binding upon and inure to the
benefit of said successors and assigns. The Borrowers' successors and
assigns include, without limitation, a receiver, trustee or
debtor-in-possession of or for the Borrowers.
XXXX INDUSTRIES, INC.
XXXX INSTALLATION SERVICES, INC.
XXXX ENCLOSURES, INC.
XXXX, INC.
XXXX PRODUCTS, INC.
XXXX CONSTRUCTION, INC.
FOLDING CARRIER CORPORATION
XXXX FOREIGN HOLDINGS, INC.
UNR REALTY, INC.
By:
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Name:
Title:
(of each of the foregoing entities)
