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TERM NOTE
$25,000,000.00 January 31, 1997
New York, New York
FOR VALUE RECEIVED, the undersigned (the "BORROWER") promises to pay to
Xxxxxxx Xxxxx Credit Partners L.P. ("BANK"), or order, the principal amount of
Twenty-Five Million Dollars ($25,000,000.00) on or before the Maturity Date (as
defined in the Loan Agreement referred to below), with interest from the date
hereof on the said principal balance from time to time outstanding at the rates
determined in accordance with the provisions of that certain First Amended and
Restated Loan Agreement dated as of January 31, 1997 by and among Borrower, the
financial institutions party thereto (the "BANKS"), and Xxxxxxx Xxxxx Credit
Partners L.P., as agent (in such capacity , "AGENT")(said First Amended and
Restated Loan Agreement, as it may be amended, supplemented or otherwise
modified from time to time being the "LOAN AGREEMENT," the terms defined herein
and not otherwise defined therein being used herein as therein defined).
Interest shall be payable at the times determined in accordance with the
provisions of the Loan Agreement.
Principal and interest shall be payable at the Bank's main office in lawful
money of the United States of America without set-off, deduction or
counterclaim. Interest shall be calculated on the basis of actual days elapsed
and a 360-day year.
At the option of the holder, this Note shall become immediately due and
payable without notice or demand upon the occurrence of an Event of Default (as
defined in the Loan Agreement).
Any payments received by the Bank on account of this Note prior to demand
shall be applied first, to any costs, expenses or charges then owed to the Bank
by the Borrower; second, to accrued and unpaid interest; and third, to the
unpaid principal balance hereof. Any payments so received after demand shall be
applied in such manner as the Bank may determine. The Borrower hereby authorizes
the Bank to charge any deposit account which the Borrower may maintain with the
Bank for any payment required hereunder.
Any and all deposits or other sums at any time credited by or due to the
undersigned or any endorser or guarantor hereof from the Bank or any of its
banking or lending affiliates, or any bank acting as a participant under any
loan arrangement between the Bank and the Borrower, any endorser or guarantor
hereof, and any cash, securities, instruments or other property of the
undersigned in the possession of the Bank or any of its banking or lending
affiliates, or any bank acting as a participant under any loan arrangement
between the Bank and the Borrower, any endorser or guarantor hereof, whether for
safekeeping or otherwise, or in transit to or from the Bank or any of its
banking or lending affiliates or any such participant, or in the possession of
any third party acting on the Bank's behalf (regardless of the reason the Bank
had received same or whether the Bank has conditionally released the same) shall
at all times constitute security for all of the liabilities and obligations of
the undersigned, any endorser or guarantor hereof to the Bank at any time,
whether or not such are then
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due, whether or not demand has been made and whether or not other collateral is
then available to the Bank.
No delay or omission on the part of the holder in exercising any right
hereunder shall operate as a waiver of such right or of any other right of such
holder, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to, or waiver of, the same or any other right on any future occasion. The
Borrower and every other maker and every endorser or guarantor of this Note,
regardless of the time, order or place of signing, waives presentment, demand,
protest and notices of every kind and assents to any extension or postponement
of the time of payment or any other indulgence, to any substitution, exchange or
release of Collateral and to the addition or release of any other party or
person primarily or secondarily liable.
The Borrower and each endorser and guarantor of this Note shall indemnify,
defend and hold the Bank and its directors, officers, employees, agents and
attorneys harmless against any claim brought or threatened against the Bank by
the Borrower, by any endorser or guarantor, or by any other person (as well as
from attorneys' reasonable fees and expenses in connection therewith) on account
of the Bank's relationship with the Borrower or any endorser or guarantor
hereof, all to the extent provided in Section 9.7(b) of the Loan Agreement.
The Borrower and each endorser and guarantor of this Note agrees to pay,
upon demand, costs of collection of the principal of and interest on this Note,
including without limitation reasonable attorneys' fees. At the option of the
Bank, after the occurrence of an Event of Default or after demand, interest
shall accrue at a rate per annum equal to the aggregate of Two (2%) percent plus
the rate provided for herein. If any payment due under this Note is unpaid for
Ten (10) days or more, the Borrower shall pay, in addition to any other sums due
under this Note (and without limiting the holder's other remedies on account
thereof, a late charge equal to Five (5%) percent of the amount of such unpaid
amount.
The Note shall be binding upon the Borrower and each endorser and guarantor
hereof and upon their respective heirs, successors, assigns and representatives,
and shall inure to the benefit of the Bank and its successors, endorsees and
assigns.
The liabilities of the Borrower and any endorser or guarantor of this Note
are joint and several; provided, however, the release by the Bank of the
Borrower or any one or more endorser or guarantor shall not release any other
person obligated on account of this Note. Any and all present and future debts
of the Borrower to any endorser or guarantor of this Note are subordinated to
the full payment and performance of all present and future debts and obligations
of the Borrower to the Bank. Each reference in this Note to the Borrower, any
endorser and any guarantor is to such person individually and also to all such
persons jointly. No person obligated on account of this Note may seek
contribution from any other person also obligated, unless and until all
liabilities, obligations and indebtedness to the Bank of the person from whom
contribution is sought have been satisfied in full. The release or compromise by
the Bank of any collateral shall not release any person obligated on account of
this Note.
The Borrower and each endorser and guarantor hereof each authorizes the
Bank to complete this Note if delivered incomplete in any respect. A
photographic or other reproduction of this Note
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may be made by the Bank, and any such reproduction shall be admissible in
evidence with the same effect of the original itself in any judicial or
administrative proceeding, whether or not the original is in existence.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY , AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
The Borrower and each endorser and guarantor of this Note each irrevocably
submits to the nonexclusive jurisdiction of any federal or state court sitting
in New York, New York, over any suit, action or proceeding arising out of or
relating to this Agreement. Each Borrower, endorser or guarantor irrevocably
waives, to the fullest extent it may effectively do so under applicable law, any
objection it may now or hereafter have to the laying of the venue of any such
suit, action or proceeding brought in any such court and any claim that the same
has been brought in an inconvenient forum. Borrower, and each endorser or
guarantor irrevocably consents to process in any such suit, action or proceeding
being served (i) by mailing a copy thereof by registered or certified mail,
postage prepaid, return receipt requested, to Borrower, or such endorsees or
guarantees address shown below or as notified to the Bank and (ii) by serving
the same upon such agent, and agrees that such service shall in every respect be
deemed effective service upon such Borrower, endorser or guarantor.
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BORROWER, AND EACH ENDORSER AND GUARANTOR AND BANK EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL
COUNSEL, WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
IN CONNECTION WITH THIS NOTE, THE OBLIGATIONS, ALL MATTERS CONTEMPLATED HEREBY
AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH. EACH BORROWER, ENDORSER AND
GUARANTOR CERTIFIES THAT NEITHER THE BANK NOR ANY OF ITS REPRESENTATIVES, AGENTS
OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK WOULD NOT IN
THE EVENT OF ANY SUCH PROCEEDING SEEK TO ENDORSE THIS WAIVER OF RIGHT TO TRIAL
BY JURY.
WITNESS: BORROWER:
SAFETY 1ST, INC.
By:
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Name: Name:
Title:
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