Gentlemen. You have requested and we have agreed to grant you a $314,000 "reload" to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms of the Fifth Amended and Restated Promissory Note, in the original principal amount of $945,000 (the "New Note"), which shall be executed by both Phoenix and GED. The principal balance of the New Note shall be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").
Appears in 2 contracts
Sources: Security Agreement (Evergood Products Corp), Security Agreement (Evergood Products Corp)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you a $314,000 "reload" pursuant to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms Section 2.02 of the Fifth Amended and Restated Promissory Note, Credit Agreement. The Borrower hereby requests a Syndicated Borrowing which is a [Euro-Dollar Borrowing] [Base Rate Borrowing] in the original aggregate principal amount of $945,000 (_______________ to be made on _______________, 199___, and for interest to accrue thereon at the "New Note"), which rate established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans]. The duration of the Interest Period with respect thereto shall be executed by both Phoenix and GED[1 month] [2 months] [3 months] [6 months] [30 days] [60 days] [90 days] [120 days]. The principal balance Borrower has caused this Notice of the New Note shall Borrowing to be made up executed and delivered by its duly authorized officer this day of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 199 . GABLES REALTY LIMITED PARTNERSHIP (the "Old Note"SEAL) on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIESGables GP, INC. Inc., its sole general partner By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ __________________________________________ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇., Senior Vice President GABLES-TENNESSEE PROPERTIES, L.L.C., (SEAL) By: Gables Realty Limited Partnership, member By: Gables GP, Inc., its sole general partner By: __________________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ., Senior Vice President EXHIBIT F --------- COMPLIANCE CERTIFICATE ---------------------- Reference is made to the Second Amended and Restated Credit Agreement dated as of August 14, 2000 (as modified and supplemented and in effect from time to time, the "Credit Agreement") among Gables Realty Limited Partnership and ▇▇▇▇▇-Tennessee Properties, or at such other place as Payee or any holder hereof may the Borrowers, the Banks from time to time designateparties thereto, and Wachovia Bank, N.A., as Administrative Agent, First Union National Bank, as Syndication Agent, and The Chase Manhattan Bank, as Documentation Agent. Capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement. Pursuant to Section 5.01(c) of the Credit Agreement, ____________________, the principal sum duly authorized [title of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money Executive Officer, other than Secretary] of the United StatesGeneral Partner, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) certifies to the collateral described Administrative Agent and the Banks that the information contained in the Security Agreement (AccountsCompliance Check List attached hereto is true, Contract Rightsaccurate and complete in all material respects as of _______________, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee______, and all related agreements, instruments (including but not limited to this Note) that no Default is in existence on and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, and (ii) restates and reaffirms that the representations and warranties contained in Article V of the principal amount hereof, together with interest accrued Credit Agreement are true on and accruing through and after as of the date hereofhereof as though restated on and as of this date. GABLES REALTY LIMITED PARTNERSHIP (SEAL) By: Gables GP, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of PayeeInc., its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. sole general partner By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION__________________________________________ [Name and title of Executive Officer, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇other than Secretary] COMPLIANCE CHECKLIST -------------------- COMPLIANCE CHECK LIST Gables Realty Limited Partnership _________________________ _______________, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").______
Appears in 2 contracts
Sources: Credit Agreement (Gables Realty Limited Partnership), Credit Agreement (Gables Residential Trust)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to you pursuant to Section 2.02 of the Credit Agreement. The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate Borrowing] [Foreign Currency Borrowing] in the aggregate principal amount of [$__________/(pound sterling)_________/etc.] to be made on ______________, 20____, and we have agreed for interest to grant you a $314,000 "reload" to accrue thereon at the machinery term loan, which advance rate established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans] [Foreign Currency Loans]. [The duration of $314,000 the Interest Period with respect thereto shall be repayable in accordance with the terms of the Fifth Amended and Restated Promissory Note, [1 month] [2 months] [3 months] [6 months]]. [alternative to above paragraph: The Borrower hereby requests a Swing Loan Borrowing in the original aggregate principal amount of $945,000 (_________________ to be made on ________________, 20__, and for interest to accrue thereon at the "New Note"), which shall rate established by the Credit Agreement for Base Rate Loans.] The Borrower has caused this Notice of Borrowing to be executed and delivered by both Phoenix and GEDits duly authorized officer this _________ day of ______________, 20____. The principal balance of the New Note shall be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ BEL▇▇▇ ▇▇▇▇ --------------------------------- C. By: ___________________________________________ Title: VP ------------------------------ GREAT EARTH DISTRIBUTIONEXHIBIT E NOTICE OF CONTINUATION OR CONVERSION _____________________, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ 20____ Wachovia Bank, N.A., as Administrative Agent 191 ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇▇ . ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇-▇▇▇▇ ▇▇▇▇ tention: Syndications Group Re: Credit Agreement (as amended and Evergood Products Corporation (modified from time to time, the "GuarantorsCredit Agreement") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to PayeeJune __, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed 2001 by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ among Bel▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTIONc., INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED")Lenders from time to time parties thereto, and The CIT Group/Credit FinanceWachovia Bank, Inc. ("CIT")N.A., assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements")as Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Belden Inc)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you a $314,000 "reload" pursuant to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms Section 2.02 of the Fifth Amended and Restated Promissory Note, Credit Agreement. The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate Borrowing] in the original aggregate principal amount of $945,000 (________ to be made on __________, 199__, and for interest to accrue thereon at the "New Note"), which rate established by the Credit Agreement for [Euro-Dollar Loans][Base Rate Loans]. The duration of the Interest Period with respect thereto shall be executed by both Phoenix and GED[1 month] [2 months] [3 months] [6 months] [30 days] [60 days] [90 days] [120 days]. The principal balance Borrower has caused this Notice of the New Note shall Borrowing to be made up executed and delivered by its duly authorized officer this _____ day of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000____________, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers199_. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCESPRINGS INDUSTRIES, INC. By: /s/ --------------------------------- ---------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES105 EXHIBIT F COMPLIANCE CERTIFICATE Reference is made to the Credit Agreement dated as of December 17, 1997 (as modified and supplemented and in effect from time to time, the "Credit Agreement") among Springs Industries, Inc., the Banks from time to time parties thereto, and Wachovia Bank of Georgia, N.A., as Agent. Capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement. Pursuant to SECTION 5.01(c) of the Credit Agreement, _____________, the duly authorized ______________ of Springs Industries, Inc., hereby certifies to the Agent and the Banks that the information contained in the Compliance Check List attached hereto is true, accurate and complete as of __________________, ____, and that no Default is in existence on and as of the date hereof. SPRINGS INDUSTRIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- ----------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION106 COMPLIANCE CHECK LIST SPRINGS INDUSTRIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June _____________________________ _______________, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").______
Appears in 1 contract
Gentlemen. You have requested ONESOURCE TECHNOLOGIES, INC., has sold and we have agreed granted to grant you a $314,000 New Horizon Capital, LLC ("reload" to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms of the Fifth Amended and Restated Promissory Note, in the original principal amount of $945,000 (the "New NoteNHC"), which shall be executed by both Phoenix and GEDa security interest in certain of our accounts receivable. The principal balance You may have been previously notified of this relationship. As of this date, payment for the New Note shall invoice(s) listed on the attached as well as all other invoices, will be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000New Horizon Capital, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory NoteLLC at P.O. Box 53097, in the original principal amount of $825,000Phoenix, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makersArizona 85072. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which These instructions shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ rem▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇re notified in writing by NHC to the contrary. Please acknowledge your receipt of the following invoice(s), ▇▇ ▇▇▇▇▇ Tel: ▇▇▇verification of the information on the attached list, and that the amounts payable on the attached list are fully earned, due and payable and will be paid in full without any offset, counter claim or deduction whatsoever. Thank you for your cooperation and assistance in this matter. Very truly yours, Michael Hirschey CEO FACSIMILE OR ORIGINAL-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇ALL PARTIES AGREE THAT A ▇▇▇▇▇▇▇▇▇ NY 11801 RE▇▇ ▇▇HER COPY OF THIS DOCUMENT AND THE SIGNATURES HEREIN MAY BE USED FOR ANY PURPOSE IN LIEU OF THE ORIGINAL DOCUMENT. Agreed, Acknowledged and Accepted by: Security Agreement ------------------------------------------------------- Print Business Name ------------------------------------------------------- Signature Date ------------------------------------------------------ Print Name Print Title EXHIBIT D --------- OFFICERS' VALIDITY CERTIFICATE This Officers' Validity Certificate (Accounts, Etc."Certificate") dated February 17as of the 3rd day of July, 1988 2003, is provided by each of the undersigned officers (the each an "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") Officer" and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing AgreementsOfficers") of ONESOURCE TECHNOLOGIES, INC., a Delaware Corporation ("ONESOURCE"), to and for the benefit of New Horizon Capital, LLC., an Arizona Limited Liability Company ("NHC").
Appears in 1 contract
Sources: Master Accounts Receivable Purchase and Security Agreement (Onesource Technologies Inc)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you a $314,000 "reload" pursuant to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms Section 2.02 of the Fifth Amended and Restated Promissory Note, Credit Agreement. The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate Borrowing] [Foreign Currency Borrowing in][SPECIFY FOREIGN CURRENCY] in the original aggregate principal amount of [the Dollar Equivalent of] $945,000 (the "New Note"), which shall be executed by both Phoenix and GED. The principal balance of the New Note shall __________ to be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June _________, 1996 FOR VALUE RECEIVED____, PHOENIX LABORATORIESand for interest to accrue thereon at the rate established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans] [Foreign Currency Loans]. The duration of the Interest Period with respect thereto shall be [1 month] [2 months] [3 months] [6 months] [30 days] [60 days] [90 days] [120 days]. The Borrower has caused this Notice of Borrowing to be executed and delivered by its duly authorized officer this _____ day of _____________, INC_____. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ INC. 107 By:_________________________ Title: 108 EXHIBIT F COMPLIANCE CERTIFICATE Reference is made to the Credit Agreement dated as of April 23, 1997 (as modified and supplemented and in effect from time to time, the "Credit Agreement") among ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇Inc., as Borrower, the Banks from time to time parties thereto, Wachovia Bank of Georgia, N.A., as Agent and First Union National Bank of North Carolina, as Documentation Agent. Capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement. Pursuant to Section 5.01(c) of the Credit Agreement, ________________, the duly authorized ____________________ of ▇▇▇▇, or at such other place Inc., hereby certifies to the Agent and the Banks that the information contained in the Compliance Check List attached hereto is true, accurate and complete as Payee or any holder hereof may from time to time designateof ________________, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) ____, and that no Default is in lawful money existence on and as of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997date hereof. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- :__________________________ Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 109 ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18INC. COMPLIANCE CHECK LIST _____________________ __________________, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").____
Appears in 1 contract
Sources: Credit Agreement (Culp Inc)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Continuation or Conversion is delivered to grant you a $314,000 "reload" pursuant to Section 2.04 of the Credit Agreement. With respect to the machinery term loan, which advance of $314,000 shall be repayable [Euro-Dollar Loans] [Foreign Currency Loans denominated in accordance with the terms of the Fifth Amended and Restated Promissory Note, [specify Foreign Currency]] in the original principal aggregate amount of [the Dollar Equivalent of] $945,000 (___________ which has an Interest Period ending on _____________, [the "New Note"), which shall be executed by both Phoenix and GED. The principal balance of the New Note shall be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ Borrower] [Russ▇▇▇ ▇▇▇▇ --------------------------------- Titleope Limited, as the Borrower with respect to Foreign Currency Borrowings]] hereby requests that such loan be [converted to a] [Base Rate Loan] [Euro-Dollar Loan] [continued as a] [Euro-Dollar Loan] [Foreign Currency Loan in the same Foreign Currency]2 in the aggregate principal amount of [the Dollar Equivalent of] $__________ to be made on such date, and for interest to accrue thereon at the rate established by the Credit Agreement for [Base Rate Loans] [Euro-Dollar Loans] [Foreign Currency Loans]. [The duration of the Interest Period with respect thereto shall be [1 month] [2 months] [3 months] [6 months]]. --------------- 1 Note: VP ------------------------------ GREAT EARTH DISTRIBUTIONForeign Currency Loans may only be continued in the same Foreign Currency, INCand may not be converted to any other type of Loan. By: /s/ The Borrower has caused this Notice of Continuation or Conversion to be executed and delivered by its duly authorized officer this ______ day of ____________, _____. RUSS▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇PORATION [AS AGENT FOR RUSS▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇OPE LIMITED] [ADD IF APPROPRIATE] By: --------------------------------------- Title: 115 124 EXHIBIT F COMPLIANCE CERTIFICATE Reference is made to the Credit Agreement dated as of October 15, 1999 (as modified and supplemented and in effect from time to time, the "Credit Agreement") among Russ▇▇▇ ▇▇▇▇ /s/ ▇▇▇poration, Russ▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇ope Limited, the Banks from time to time parties thereto, Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank, Atlanta, as Syndication Agent and First Union National Bank, as Documentation Agent. Capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement. Pursuant to Section 5.01(c) of the Credit Agreement, _____________________, the duly authorized [Chief Financial Officer/Chief Accounting Officer] of the Borrower, hereby (i) certifies to the Administrative Agent and the Banks that the information contained in the Compliance Check List attached hereto is true, accurate and complete as of ____________________, ______, and that no Default is in existence on and as of the date hereof and (ii) restates and reaffirms that the representations and warranties contained in Article IV of the Credit Agreement are true on and as of the date hereof as though restated on and as of this date. RUSS▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION PORATION (SEAL) By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. ------------------------------------ Name and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order title of THE CIT GROUP[Chief Financial Officer/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").Chief Accounting Officer] 116 125
Appears in 1 contract
Sources: Credit Agreement (Russell Corp)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you a $314,000 "reload" pursuant to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms Section 2.02 of the Fifth Amended and Restated Promissory NoteCredit Agreement. [The Borrower] [Russell Europe Limited], in as the original principal amount of $945,000 (the "New Note"), which shall be executed by both Phoenix and GED. The principal balance of the New Note shall be made up of a $314,000 advance Borrower with respect to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇Foreign Curr▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE rrowings]] hereby requests a [Euro-Dollar Borrowing] [Base Rate Borrowing] [Foreign Currency Borrowing] [Swing Loan Borrowing] in the aggregate principal amount of [the Dollar Equivalent of] $945,000 New York, New York June __________ to be made on ______________, 1996 FOR VALUE RECEIVED______, PHOENIX LABORATORIESand for interest to accrue thereon at the rate established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans] [Foreign Currency Loans]. [The duration of the Interest Period with respect thereto shall be [1 month] [2 months] [3 months] [6 months]]. The Borrower has caused this Notice of Borrowing to be executed and delivered by its duly authorized officer this _________ day of ______________, INC______. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇RUSSELL CORPORATION [AS AGENT F▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ELL EUROPE LIMITED] [ADD IF ▇▇▇▇▇▇RIATE] By: ------------------------------------- Title: EXHIBIT E-2 NOTICE OF CONTINUATION OR CONVERSION ---------------------, or at such other place ------ Wachovia Bank, N.A., as Payee or any holder hereof may from time to time designateAdministrative Agent 191 Peachtree Street, the principal sum of NINE HUNDRED AND FORTYN.E. Atlanta, Georgia 30303-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by1757 Attention: Sy▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇ ▇▇: ▇▇▇▇▇▇▇ ▇▇d Restated Credit Agreement (as amended and modified from time to time, the "Credit Agreement") dated as of January 31, 2002, by and among Russell Corporation, Russell Europe Limite▇, ▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇Banks from tim▇ ▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTIONme parties thereto, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇Wachovia Bank, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18N.A., 1996 Phoenix Laboratoriesas Administrative Agent, Inc. Great Earth DistributionSuntrust Bank (formerly Suntrust Bank, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"Atlanta), between Phoenix Laboratoriesas Syndication Agent and First Union National Bank, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements")as Documentation Agent.
Appears in 1 contract
Sources: Credit Agreement (Russell Corp)
Gentlemen. You have requested are hereby instructed, effective on _____________ (the “Servicing Transfer Date”), to service the Mortgage Loans listed on Exhibit A attached hereto to _______________. From and we have agreed to grant you a $314,000 "reload" after the Servicing Transfer Date, the Mortgage Loans listed on Exhibit A shall no longer be subject to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms provisions of the Fifth Amended and Restated Promissory Note, in the original principal amount of $945,000 (the "New Note"), which shall be executed by both Phoenix and GEDServicing Control Agreement. The principal balance of the New Note shall be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE▇▇▇▇▇▇▇▇▇ MORTGAGE HOME LOANS, INC. By: /s/ --------------------------------- Name: Title: VICE PRESIDENT ------------------------------ [LENDER 1] By: Name: Title: [LENDER 2] By: Name: Title: ACKNOWLEDGED AND AGREED: PHOENIX LABORATORIES[SERVICER] By: Name: Title: , 20 ▇▇▇▇▇ Fargo Home Mortgage, Inc. hereby certifies that it has established the account described below as a Custodial Account pursuant to Section 4.04 of the Seller's Warranties and Servicing Agreement, dated as of , 20 . Title of Account: ▇▇▇▇▇ Fargo Home Mortgage, Inc. in trust for the Purchaser and/or subsequent purchasers of Mortgage Loans, and various Mortgagors - P & I Address of office or branch at which Account is maintained: ▇▇▇▇▇ FARGO HOME MORTGAGE, INC. Company By: /s/ Name: Title: , 20 ▇▇▇▇▇ Fargo Home Mortgage, Inc. hereby certifies that it has established the account described below as an Escrow Account pursuant to Section 4.06 of the Seller's Warranties and Servicing Agreement, dated as of , 20 . Title of Account: ▇▇▇▇▇ Fargo Home Mortgage, Inc. in trust for the Purchaser and/or subsequent purchasers of Mortgage Loans, and various Mortgagors - T & I Address of office or branch at which account is maintained: ▇▇▇▇▇ FARGO HOME MORTGAGE, INC. Company By: Name: Title: This is a Purchase Agreement (the "Agreement"), dated as of August 1, 2002 by and between ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc., having an office at ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ------------------------------------- ▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ (the "Purchaser") and ▇▇▇▇▇ Fargo Home Mortgage, Inc., having an ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ , ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing AgreementsSeller").
Appears in 1 contract
Sources: Servicing Agreement (Greenwich Capital Acceptance Inc)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you a $314,000 "reload" pursuant to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms Section 2.02 of the Fifth Amended and Restated Promissory Note, Credit Agreement. The Borrower hereby requests a [Euro-Dollar Borrowing][Base Rate Borrowing] in the original aggregate principal amount of $945,000 (the "New Note"), which shall be executed by both Phoenix and GED. The principal balance of the New Note shall ___________ to be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ________, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 199619__, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay for interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed accrue thereon at the rate established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans]. The duration of three and onethe Interest Period with respect to the Euro-half percent (Dollar Loans comprising such Euro-Dollar Borrowing shall be [1 month] [2 months] [3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended months] [6 months]. The Borrower has caused this Notice of Borrowing to be the lowest rate of interest charged executed and delivered by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) duly authorized officer this ___ day of each month____, commencing July 1, 1996199_. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws BLESSINGS CORPORATION By:______________________ Title: A#0003877.05 EXHIBIT I GUARANTY AGREEMENT THIS GUARANTY AGREEMENT (this "Guaranty") is made as of the State ____ day of New York. This Note is secured _________, 1995, by the undersigned (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter hereinafter collectively referred to as the "Financing AgreementsGuarantors" and individually as a "Guarantor"). This Note supersedes , to and replaces but does not extinguish any for the benefit of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11WACHOVIA BANK OF GEORGIA, 1995N.A., a national banking association in the original principal amount of $825,000.00 by Payor in favor of Payee its capacity as Agent (the "Existing NoteAgent") for the Banks as defined in that certain Credit Agreement dated October 25, 1995 between Blessings Corporation, a Delaware corporation (the "Borrower"), the Agent and the Banks (as amended, modified or extended from time to time, the "Credit Agreement") and for the benefit of the Banks. The indebtedness of Payor Banks have agreed to Payee evidenced hereby includes (i) extend credit to the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, Borrower in the principal amount hereofof up to $25,000,000 upon the terms and conditions set forth in the Credit Agreement. As a condition to extending such credit, together with interest accrued the Banks have required that any Subsidiary which is or becomes a Significant Domestic Subsidiary execute and accruing through and after deliver a guaranty agreement to the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoeverAgent. The amendment and restatement contained undersigned is a Significant Domestic Subsidiary. Capitalized terms used but not defined herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish have the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay respective meanings ascribed thereto in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, EtcAgreement.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").
Appears in 1 contract
Sources: Credit Agreement (Blessings Corp)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you a $314,000 "reload" pursuant to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms Section 2.02 of the Fifth Amended and Restated Promissory Note, Credit Agreement. The Borrower hereby requests a [Euro-Dollar Borrowing][Base Rate Borrowing] [Foreign Currency] in the original aggregate principal amount of $945,000 (the "New Note"), which shall be executed by both Phoenix and GED. The principal balance of the New Note shall _____________ to be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____________________, 1996 FOR VALUE RECEIVED199__, PHOENIX LABORATORIESand for interest to accrue thereon at the rate established by the Credit Agreement for [Fixed Rate Loans][Base Rate Loans]. The Borrower has caused this Notice of Borrowing to be executed and delivered by its duly authorized officer this ____ day of _______________, INC199__. and GREAT EARTH DISTRIBUTIONGerber Scientific, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay Inc. By:______________________________________ Title: EXHIBIT E --------- COMPLIANCE CERTIFICATE ---------------------- Reference is made to the order Credit Agreement dated as of THE CIT GROUP/CREDIT FINANCEMarch 23, INC., a Delaware corporation 1998 ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may modified and supplemented and in effect from time to time designatetime, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00"Credit Agreement") between Gerber Scientific, Inc., as Borrower, and Wachovia Bank, N.A., as Bank. Capitalized terms used herein shall have the meanings ascribed thereto in lawful money the Credit Agreement. Pursuant to Section 5.01(c) of the United StatesCredit Agreement, ________________, the duly authorized ____________________ of Gerber Scientific, Inc., hereby certifies to the Bank that the information contained in eight installments the Compliance Check List attached hereto is true, accurate and complete as of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month________________, commencing July 1, 1996_____, and one (1) final installment that no Default is in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place existence on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIESGERBER SCIENTIFIC, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- :______________________________________ Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTIONGERBER SCIENTIFIC, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇COMPLIANCE CHECK LIST _______________, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").______
Appears in 1 contract
Gentlemen. You have We hereby establish our Irrevocable Letter of Credit and authorize you to draw on us at sight for the account of _____________________, a _____________________, the aggregate amount of _____________________ and No/100 Dollars ($_________). Funds under this Letter of Credit are available to the beneficiary hereof as follows: Any or all of the sums hereunder may be drawn down at any time and from time to time from and after the date hereof by _____________________ ("Beneficiary") when accompanied by this Letter of Credit and a written statement signed by __________________________, certifying that such moneys are due and owing to Beneficiary, together with a certificate of incumbency executed by ___________________ certifying the position and signature of the officer signing the statement, and a sight draft executed and endorsed by _____________, as a ________________ of Beneficiary. This Letter of Credit is transferable in its entirety. Should a transfer be desired, such transfer will be subject to the return to us of this advice, together with written instructions. The amount of each draft must be endorsed on the reverse hereof by the negotiating bank. We hereby agree that this Letter of Credit shall be duly honored upon presentation and delivery of the certification specified above. This Letter of Credit shall expire on ______________, 200__. Notwithstanding the above expiration date of this Letter of Credit, the term of this Letter of Credit shall be automatically renewed for successive, additional one (1) year periods unless, at least thirty (30) days prior to any such date of expiration, the undersigned shall give written notice to Holder, by certified mail, return receipt requested and we have agreed to grant you a $314,000 "reload" at the address set forth above or at such other address as may be given to the machinery term loanundersigned by Holder, which advance that this Letter of $314,000 shall Credit will not be repayable renewed. EXHIBIT G -1- This Letter of Credit is governed by the Uniform Customs and Practice for Documentary Credits (1983 Revision), International Chamber of Commerce Publication 400. This Letter of Credit is governed by the Uniform Customs and Practice for Documentary Credits (1983 Revision). International Chamber of Commerce Publication 400. Very truly yours. (Name of Issuing Bank) By:____________________________ EXHIBIT G -2- EXHIBIT H --------- FORM OF SHORT FORM OF LEASE --------------------------- RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: ___________________________ ___________________________ ___________________________ ================================================================================ SHORT FORM OF LEASE ------------------- THIS SHORT FORM OF LEASE ("MEMORANDUM") is made as of February 11, 2000, by and between KR-Gateway Partners, LLC, a Delaware limited liability company ("LANDLORD") and Diversa Corporation, a Delaware corporation ("TENANT"). Pursuant to that certain Retail Lease by and between Landlord and Tenant dated as of November 16, 1999 (the "LEASE"), subject to and in accordance with the terms of such Lease, Landlord hereby leases to Tenant that certain premises contained therein within the Fifth Amended project comprised of that certain real property described in Schedule 1 attached hereto and Restated Promissory Noteincorporated herein by reference. ---------- All the terms, conditions, covenants and agreements in the original principal amount of $945,000 (Lease are incorporated into this Memorandum with the "New Note"), which shall be executed by both Phoenix and GED. The principal balance of the New Note shall be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full same force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place effect as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without noticethey were fully recited herein. In the event of any litigation with respect to any inconsistency between the terms of this Memorandum and the terms of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceableLease, the validity of all other terms and provisions hereof Lease shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etccontrol.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").
Appears in 1 contract
Sources: Lease (Diversa Corp)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you pursuant to Section 2.02 of the Credit Agreement. The Borrower hereby requests a $314,000 "reload" to [Euro-Dollar Borrowing][Base Rate Borrowing][Foreign Currency Borrowing in][specify Foreign Currency] in the machinery term loan, which advance aggregate principal amount [of the Dollar Equivalent] of $314,000 shall be repayable in accordance with the terms of the Fifth Amended and Restated Promissory Note, in the original principal amount of $945,000 (the "New Note"), which shall be executed by both Phoenix and GED. The principal balance of the New Note shall ____________ to be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June _______________, 1996 FOR VALUE RECEIVED200__, PHOENIX LABORATORIESand for interest to accrue thereon at the rate established by the Credit Agreement for [Fixed Rate Loans][Base Rate Loans]. The duration of the Interest Period with respect thereto shall be [1 month] [2 months] [3 months] [6 months]. The Borrower has caused this Notice of Borrowing to be executed and delivered by its duly authorized officer this day of , INC200__. Gerber Scientific, Inc. By: Title: Exhibit E ASSIGNMENT AND ACCEPTANCE Dated ___________ ____, 200__ Reference is made to the Amended and GREAT EARTH DISTRIBUTIONRestated Credit Agreement dated as of March 14, INC. 2001 (individually together with all amendments and collectively modifications thereto, the "PayorCredit Agreement") among Gerber Scientific, Inc., a Connecticut corporation (the "Borrower"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation Banks ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment defined in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowersCredit Agreement) and such interest shall be payable monthly on the first (1st) day of each monthWachovia Bank, commencing July 1N.A., 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation as Agent (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing AgreementsAgent"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, Terms defined in the original principal amount of $825,000.00 by Payor in favor of Payee Credit Agreement are used herein with the same meaning. ____________________ (the "Existing NoteAssignor"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 ____________________ (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("PhoenixAssignee") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").agree as follows:
Appears in 1 contract
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you pursuant to Section 2.02 of the Credit Agreement. On behalf of [INSERT NAME OF BORROWER], the Parent hereby requests a $314,000 "reload" to [Euro- Dollar Borrowing] [Base Rate Borrowing] [Swing Loan Borrowing] [Syndicated Foreign Currency Borrowing] [specify Foreign Currency] in the machinery term loan, which advance aggregate principal amount [Dollar Equivalent] of $314,000 ___________ to be made on ______________, _____, and for interest to accrue thereon at the rate established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans][Syndicated Foreign Currency Loans]. The duration of the Interest Period with respect thereto (other than Swing Loan Borrowings bearing interest at the Wachovia Alternative Rate which have an Interest Period of 5 Domestic Business Days) shall be repayable in accordance with the terms [1 month] [2 months] [3 months] [6 months] [30 days]. The Borrowing requested hereunder for [insert name of the Fifth Amended and Restated Promissory Note, in the original principal amount of $945,000 (the "New Note"), which Borrower] shall be executed by both Phoenix and GEDadvanced to such Borrower in [insert name of country from Foreign Jurisdiction Letter]. The principal balance of the New Note shall be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account Aggregate Outstanding Loans on the date hereof, without giving effect to the Borrowing requested hereby, is [less than] [equal to or greater than] 66 2/3% of the Aggregate Commitments. Except as hereinabove set forthThe Parent's current Debt Rating is [_________]. The Borrower, through the Financing Agreements shall remain unmodified Parent, has caused this Notice of Borrowing to be executed and in full force and effectdelivered by its duly authorized officer this _____ day of ___________, _____. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, EQUIFAX INC. By: /s/ --------------------------------- :_______________________________ Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIESEXHIBIT F --------- COMPLIANCE CERTIFICATE ---------------------- Reference is made to the Credit Agreement dated as of November 21, 1997 (as modified and supplemented and in effect from time to time, the "Credit Agreement") among Equifax Inc., its Wholly Owned Subsidiaries parties thereto, the Banks from time to time parties thereto, Wachovia Bank, N.A., as Agent. Capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement. Pursuant to Section 5.01(c) of the Credit Agreement, (i) _______________, the duly authorized ____________________ of Equifax Inc. hereby certifies to the Agent and the Banks as required by Section 5.01(c) that the information contained in the Compliance Check List attached hereto is true, accurate and complete as of __________, ____, and (ii) ____________________, the duly authorized ______________________________ of Equifax Inc. hereby (A) certifies to the Agent and the Banks as required by Section 5.01(c) that to the knowledge of such officer, no Default is in existence on and as of the date hereof and (B) restates and reaffirms as required by Section 5.01(c) that to the knowledge of such officer, the representations and warranties contained in Article IV of the Credit Agreement are true on and as of the date hereof (x) as stated as to representations and warranties which contain materiality limitations, and (y) and in all material respects as to all other representations and warranties. Dated this _____ day of ____________, 199/200__. EQUIFAX INC. By:_______________________________ Title: /s/ COMPLIANCE CHECK LIST Equifax Inc. -------------------------- [TO BE COMPLETED] EXHIBIT G --------- CLOSING CERTIFICATE ------------------- Reference is made to the Credit Agreement (the "Credit Agreement") dated as of November 21, 1997, among Equifax Inc., its Wholly Owned Subsidiaries parties thereto, the Banks listed therein, and Wachovia Bank, N.A., as Agent. Capitalized terms used herein have the meanings ascribed thereto in the Credit Agreement. Pursuant to Section 3.01(e) of the Credit Agreement, _____________________________, the duly authorized ____________________ of Equifax Inc. hereby certifies to the Agent and the Banks as required by Section 3.01(e) that (i) no Default has occurred and is continuing as of the date hereof, and (ii) the representations and warranties contained in Article IV of the Credit Agreement are true on and as of the date hereof (x) as stated as to representations and warranties which contain materiality limitations, and (y) and in all material respects as to all other representations and warranties. Certified as of this 21st day of November, 1997. EQUIFAX INC. By:___________________________ Printed Name:______________ Title:_____________________ EXHIBIT H --------- MONEY MARKET QUOTE REQUEST -------------------------- Wachovia Bank, N.A., as Agent ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇▇ . ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ FaxAttention: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RESyndications Group Re: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").Money Market Quote Request --------------------------
Appears in 1 contract
Sources: Credit Agreement (Equifax Inc)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you a $314,000 "reload" pursuant to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms Section 2.02 of the Fifth Amended and Restated Promissory Note, Credit Agreement. The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate Borrowing] [Conventional Rate Banker's Acceptance] in the original aggregate principal amount of $945,000 (___________ to be made on ______________, 199__, and for interest to accrue thereon at the "New Note"), which rate established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans] [Conventional Rate Banker's Acceptances]. The duration of the Interest Period with respect thereto shall be executed by both Phoenix and GED[1 month] [2 months] [3 months] [6 months] [30 days][__ days]. The principal balance Borrower has caused this Notice of the New Note shall Borrowing to be made up executed and delivered by its duly authorized officer this _____ day of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000___________, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers_____. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCESAVANNAH FOODS & INDUSTRIES, INC. By: /s/ --------------------------------- ------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June 140 EXHIBIT E COMPLIANCE CERTIFICATE Reference is made to the Letter Agreement dated as of ________, 1996 FOR VALUE RECEIVED19____, PHOENIX LABORATORIESbetween Savannah Foods & Industries, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC.Inc., a Delaware corporation (the "PayeeBorrower"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation ___________________________________________ (the "GuarantorsBank") and the Master Credit Agreement referred to in and incorporated by reference into the Letter Agreement (the "Master Credit Agreement") (the foregoingLetter Agreement with the Bank and the Master Credit Agreement collectively, as the same may now exist together with all amendments and have been and may hereafter be amendedmodifications thereto, modified, replaced or supplemented, are hereafter collectively referred to as being the "Financing AgreementsCredit Agreement"). This Note supersedes and replaces but does not extinguish any Capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement. Pursuant to Section 5.01(c) of the unpaid liabilities and obligations under Credit Agreement, _______________, the Fourth Amended and Restated Promissory Note dated January 11duly authorized ________________ ___ of Savannah Foods & Industries, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced Inc. hereby includes (i) certifies to the unpaid balance Bank that the information contained in the Compliance Check List attached hereto is true, accurate and complete as of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; ________, ___, and that no Defaults or Events of Default exist and (ii) an indebtedness restates and reaffirms that the representations and warranties contained in Article IV of $314,000 representing an advance made by Payee to Payor the Credit Agreement are true on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued as though restated on and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INCdate. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- --------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION141 89 COMPLIANCE CHECK LIST (Savannah Foods & Industries, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇Inc.) __________________________ _____________, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements")._____
Appears in 1 contract
Sources: Master Credit Agreement (Savannah Foods & Industries Inc)
Gentlemen. You have requested and we have agreed to grant you a $314,000 "reload" Reference is made to the machinery term loanabove-mentioned Sale Agreement. All initially capitalized terms used herein shall have the meanings set forth in the Sale Agreement. We have agreed, which advance of $314,000 as set forth in the May 14, 1996 Letter Agreement modifying the Sale Agreement, that the Purchase Price shall be repayable in accordance with allocated among the terms of Properties (solely for federal, state and local tax reporting purposes) as set forth on the Fifth Amended and Restated Promissory Note, attached Schedule. Please execute this letter in the original principal amount of $945,000 (the "New Note"), which shall be executed by both Phoenix and GED. The principal balance of the New Note shall be made up of a $314,000 advance place indicated below to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with confirm that the foregoing by signing and returning to us the enclosed copy of this letterrepresents our mutual understanding. Very truly yoursGLIMCHER PROPERTIES LIMITED PARTNERSHIP By: Glimcher Properties Corporation, THE CIT GROUP/CREDIT FINANCE, INC. general partner By: /s/ --------------------------------- ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ --------------------- Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: VICE PRESIDENT ------------------------------ AGREEDExecutive Vice President AGREED TO AND ACKNOWLEDGED BY: PHOENIX LABORATORIESRETAIL PROPERTY INVESTORS, INC. By: /s/ ▇▇▇ ▇▇▇▇▇▇ --------------------------------- ▇. ▇▇▇▇▇ ---------------------- Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: VP ------------------------------ GREAT EARTH DISTRIBUTIONPresident and Chief Executive Officer PAINEWEBBER RETAIL PROPERTY INVESTMENTS, INCLTD. By: Retail Property Investors, Inc., General Partner By: /s/ ▇▇▇ ▇▇▇▇▇▇ --------------------------------- ▇. ▇▇▇▇▇ ------------------------ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: PRES. ------------------------------ CONFIRMEDPresident and Chief Executive Officer PAINEWEBBER RETAIL PROPERTY INVESTMENTS JOINT VENTURE By: Retail Property Investors, Inc., a Venturer thereof By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ------------------------- Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: President and Chief Executive Officer By: PaineWebber Properties Incorporated, a Venturer thereof By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ------------------------- Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: President and Chief Executive Officer PAINEWEBBER COLLEGE PLAZA, L.P. By: Retail Property Investors, Inc., General Partner By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ----------------------- Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: President and Chief Executive Officer PAINEWEBBER ▇▇▇▇▇▇ ▇▇▇▇▇, L.P. By: Retail Property Investors, Inc., General Partner By: /s/ ▇▇▇▇▇▇▇▇ ------------------------------------- ▇. ▇▇▇▇▇ --------------------- Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: President and Chief Executive Officer Schedule 3.2 Allocation of Purchase Price Property Allocation of Purchase Price for Tax Purposes Artesian Square 7,033,595 Audobon Village 5,614,525 Aviation Plaza 8,553,531 Barren River 11,267,573 Crossing ▇▇▇▇▇▇▇ 12,446,694 Crossroads Centre 8,283,772 Cumberland Crossing 6,729,637 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇,▇▇▇,▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ------------------------------------- 9,453,598 ▇▇▇▇▇ Place 3,368,504 ▇▇▇▇▇▇ ▇▇▇▇▇ EVERGOOD PRODUCTS CORPORATION ByCenter 7,264,482 ▇▇▇▇▇ County Plaza 5,880,169 Southside Plaza 9,262,160 Village Plaza 23,408,448 College Plaza 10,328,415 Cross Creek Plaza 12,708,525 Cypress Bay Plaza 10,795,423 Franklin Square 9,380,038 Sycamore Square 3,092,717 Walterboro 6,006,150 Applewood Village 3,867,787 Piedmont Plaza 10,125,000 Total: /s/ 196,999,999 Glimcher Realty Trust Glimcher Properties Limited Partnership ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ October 16, 1996 Retail Property Investors, Inc. PaineWebber Retail Property Investors, Ltd. PaineWebber Retail Property Investments Joint Venture PaineWebber College Plaza, L.P. PaineWebber ▇▇▇▇▇▇ ▇▇▇▇▇, L.P. c/o PaineWebber Properties Incorporated ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ TelRe: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18Purchase and Sale Agreement (as amended to date, the "Sale Agreement") dated as of March 11, 1996 Phoenix Laboratoriesby and among Retail Property Investors, Inc. Great Earth DistributionInc., Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments et al (collectively, the "Financing AgreementsSellers") and Glimcher Realty Trust (the "GRT").
Appears in 1 contract
Sources: Purchase and Sale Agreement (Glimcher Realty Trust)
Gentlemen. You have requested and we have agreed to grant you a $314,000 "reload" The Lenders hereby represent to the machinery term loanCredit Parties and The CIT Group/Business Credit, which advance of $314,000 shall be repayable in accordance with the terms of the Fifth Amended and Restated Promissory Note, in the original principal amount of $945,000 Inc. (the "New NoteCIT"), which shall be executed by both Phoenix and GEDthat the Lenders are the holders of the Credit Agreement described above. The principal balance Lenders further represent to the Credit Parties and CIT that, as of the New Note shall be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified total amount of outstanding loans under the Credit Agreement and in full force all other liabilities or indebtedness of the Co-Borrowers to the Lenders under the Credit Agreement and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yoursother loan or collateral documents related thereto (collectively, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "PayorLoan Documents"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCEis $3,637,879.24 (collectively, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing NoteObligations"). The indebtedness of Payor Lenders have agreed to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the release their liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any personal property of the Financing Agreements, or if any Credit Parties and to terminate the Credit Agreement and the other Loan Documents upon satisfaction of the Financing Agreements following conditions: (a) $2,950,000 of the Existing Obligations shall be terminated or not be renewed for any reason whatsoever, then refinanced and in any such eventthe Credit Parties shall execute and deliver to the Lenders term notes, in addition form and substance satisfactory to all rights and remedies of Payee under the Financing AgreementsLenders, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligenceaggregate amount of $2,9500,000 (the "Term Notes"), demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In (b) the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents Credit Parties shall deliver to the jurisdiction Administrative Agent, a Mortgage by BTI, as mortgagor, granting to JPMorgan Chase Bank, as collateral agent for the Lenders, as mortgagee (the "Mortgage") a second lien on the parcel of the courts of the State of real property and improvements thereon known as 100 Marcus Boulevard, Hauppauge, New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at (the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ "Premises") as collat▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ NY 11801 RE: Security Agreement $▇,▇▇▇,▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ations of the Credit Parties under the Term Notes; (Accountsc) the Credit Parties shall pay to the Administrative Agent the sum of $250,000, Etc.) dated February 17, 1988 for the ratable distribution to the Lenders (the "Accounts AgreementPayment"), between Phoenix Laboratoriessuch Payment to be made to the Administrative Agent by way of wire transfer in immediately available funds directed as set forth below; (d) BC shall deliver to the Lenders 750,000 shares of common stock of BC, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED")substantially on the terms described on Exhibit 1 hereto, and (e) the balance of the Existing Obligations shall be satisfied by delivery by BC to the Lenders of redeemable, 1,250,000 of convertible preferred stock of BC, substantially on the terms described on Exhibit 2 attached hereto. The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").wire transfer instructions are as follows:
Appears in 1 contract
Sources: Credit Agreement (Boundless Corp)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Continuation or Conversion is delivered to grant you a $314,000 "reload" pursuant to Section 2.04 of the Credit Agreement. With respect to the machinery term loan, which advance [Base Rate Loans] [Euro-Dollar Loans] in the aggregate amount of $314,000 shall ___________ which has an Interest Period ending on _____________, the Borrower hereby requests that such loan be repayable in accordance with the terms of the Fifth Amended and Restated Promissory Note, [converted to a] [Base Rate Loan] [Euro-Dollar Loan] [continued as a] [Euro-Dollar Loan] in the original aggregate principal amount of $945,000 __________ to be made on such date, and for interest to accrue thereon at the rate established by the Credit Agreement for [Base Rate Loans] [Euro-Dollar Loans]. [The duration of the Interest Period with respect thereto shall be [1 month] [2 months] [3 months] [6 months]. The Borrower has caused this Notice of Continuation or Conversion to be executed and delivered by its duly authorized officer this ______ day of ____________, 20___. [AIRBORNE FREIGHT CORPORATION, a Delaware corporation] [if after the Reorganization Effective Date, insert Holding Company's name] By: Title: EXHIBIT F COMPLIANCE CERTIFICATE Reference is made to the Credit Agreement dated as of July 27, 2000 (as modified and supplemented and in effect from time to time, the "New NoteCredit Agreement")) by and among [AIRBORNE FREIGHT CORPORATION, which a Delaware corporation] [if after the Reorganization Effective Date, insert Holding Company's name], the Lenders from time to time parties thereto, and Wachovia Bank, N.A., as Administrative Agent. Capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement; all amounts shown herein, unless expressly set forth to the contrary, shall be executed by both Phoenix and GEDwithout duplication. The principal balance Pursuant to Section 5.01(c) of the New Note shall be made up of a $314,000 advance to repay Credit Agreement, _____________, the amount presently outstanding to you in excess duly authorized __________ of the contractual formulas in your Financing Agreements Borrower, hereby (i) certifies to the Administrative Agent and the sum of approximately $631,000, representing Lenders that the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, information contained in the original principal amount Compliance Check List attached hereto is true, accurate and complete as of $825,000_________, dated January 11_____, 1995 (and that, to the "Old Note") best of our knowledge, no Default is in existence on which both and as of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except , (ii) restates and reaffirms that the representations and warranties contained in Article IV of the Credit Agreement are true on and as hereinabove set forth, of the Financing Agreements shall remain unmodified date hereof as though restated on and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy as of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ date (except to the extent any such representation or warranty is expressly made as of a prior date) and (iii) certifies that the Debt Rating as of the most recent Performance Pricing Determination Date is [____ by ▇▇▇▇▇'▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION and ___ by S&P] and the Applicable Margin in effect as a result thereof is ___% for Euro-Dollar Loans. [AIRBORNE FREIGHT CORPORATION, a Delaware corporation] [if after the Reorganization Effective Date, insert Holding Company's name] By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- TitleIts: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June [AIRBORNE FREIGHT CORPORATION] As of [______________], 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").200[__] EXHIBIT F continued
Appears in 1 contract
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you a $314,000 "reload" pursuant to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms Section 2.02 of the Fifth Amended and Restated Promissory Note, Credit Agreement. The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate Borrowing] in the original aggregate principal amount of $945,000 (___________ to be made on ____________, ____, and for interest to accrue thereon at the "New Note"), which rate established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans]. The duration of the Interest Period with respect thereto shall be executed by both Phoenix and GED[1 month] [2 months] [3 months] [6 months] [30 days]. The principal balance Borrower has caused this Notice of the New Note shall Borrowing to be made up executed and delivered by its duly authorized officer this _____day of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000______, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers_________. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCEFLOWERS INDUSTRIES, INC. By: /s/ --------------------------------- ---------------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES102 EXHIBIT F COMPLIANCE CERTIFICATE Reference is made to the Amended and Restated Credit Agreement dated as of January 30, 1998 (as modified and supplemented and in effect from time to time, the "Credit Agreement") among Flowers Industries, Inc., the Banks from time to time parties thereto, Wachovia Bank, N.A., as Agent, The Bank of Nova Scotia, as Documentation Agent, and NationsBank, N.A., as Syndications Agent. Capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement. Pursuant to Section 5.01(c) of the Credit Agreement, ___________________, the duly authorized ___________________________ of Flowers Industries, Inc., hereby (A) certifies to the Agent and the Banks that the information contained in the Compliance Check List attached hereto is true, accurate and complete as of __________, ____, (B) certifies to the Agent and the Banks that no Default is in existence on and as of the date hereof and (C) restates and reaffirms that the representations and warranties contained in Article IV of the Credit Agreement are true on and as of the date hereof as though restated on and as of this date. FLOWERS INDUSTRIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- ---------------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION103 COMPLIANCE CHECK LIST Flowers Industries, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June Inc. __________________________ _______________, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").____
Appears in 1 contract
Gentlemen. You have requested and we have agreed to grant you a $314,000 "reload" Reference is made to the machinery term loanabove-mentioned Sale Agreement. All initially capitalized terms used herein shall have the meanings set forth in the Sale Agreement. We have agreed, which advance of $314,000 as set forth in the May 14, 1996 Letter Agreement modifying the Sale Agreement, that the Purchase Price shall be repayable in accordance with allocated among the terms of Properties (solely for federal, state and local tax reporting purposes) as set forth on the Fifth Amended and Restated Promissory Note, attached Schedule. Please execute this letter in the original principal amount of $945,000 (the "New Note"), which shall be executed by both Phoenix and GED. The principal balance of the New Note shall be made up of a $314,000 advance place indicated below to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with confirm that the foregoing by signing and returning to us the enclosed copy of this letterrepresents our mutual understanding. Very truly yoursGLIMCHER PROPERTIES LIMITED PARTNERSHIP By: Glimcher Properties Corporation, THE CIT GROUP/CREDIT FINANCE, INC. general partner By: /s/ --------------------------------- ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ------------------------ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: VICE PRESIDENT ------------------------------ AGREEDExecutive Vice President AGREED TO AND ACKNOWLEDGED BY: PHOENIX LABORATORIESRETAIL PROPERTY INVESTORS, INC. By: /s/ ▇▇▇ ▇▇▇▇▇▇ --------------------------------- ▇. ▇▇▇▇▇ ------------------------ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: VP ------------------------------ GREAT EARTH DISTRIBUTIONPresident and Chief Executive Officer PAINEWEBBER RETAIL PROPERTY INVESTMENTS, INCLTD. By: Retail Property Investors, Inc., General Partner By: /s/ ▇▇▇ ▇▇▇▇▇▇ --------------------------------- ▇. ▇▇▇▇▇ ------------------------- Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: PRES. ------------------------------ CONFIRMEDPresident and Chief Executive Officer PAINEWEBBER RETAIL PROPERTY INVESTMENTS JOINT VENTURE By: Retail Property Investors, Inc., a Venturer thereof By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ------------------------- Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: President and Chief Executive Officer By: PaineWebber Properties Incorporated, a Venturer thereof By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ------------------------ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: President and Chief Executive Officer PAINEWEBBER COLLEGE PLAZA, L.P. By: Retail Property Investors, Inc., General Partner By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ------------------------- Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: President and Chief Executive Officer PAINEWEBBER ▇▇▇▇▇▇ ▇▇▇▇▇, L.P. By: Retail Property Investors, Inc., General Partner By: /s/ ▇▇▇▇▇▇▇▇ ------------------------------------- ▇. ▇▇▇▇▇ ---------------------------- Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: President and Chief Executive Officer Glimcher Properties Limited Partnership ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ /s/ ▇▇▇▇▇ June 27, 1996 Retail Property Investors, Inc. PaineWebber Property Investors, Ltd. PaineWebber Retail Property Investments Joint Venture PaineWebber College Plaza, L.P. PaineWebber ▇▇▇▇▇▇ ▇▇▇▇▇, L.P. c/o PaineWebber Properties Incorporated ▇▇▇ ------------------------------------- ▇▇▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ TelRe: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18Purchase and Sale Agreement dated as of March 11, 1996 Phoenix Laboratoriesby and among Retail Property Investors, Inc. Great Earth DistributionInc., Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement et al. and Glimcher Realty Trust (Accounts"GRT"), Etc.) dated February 17, 1988 as amended and as assigned by GRT to Glimcher Properties Limited Partnership (the "Accounts Sale Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").
Appears in 1 contract
Sources: Purchase and Sale Agreement (Glimcher Realty Trust)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Continuation or Conversion is delivered to grant you a $314,000 "reload" pursuant to Section 2.04 of the Credit Agreement. With respect to the machinery term loan, which advance Euro-Dollar Loans in the aggregate amount of $314,000 shall ___________ which has an Interest Period ending on _____________, the Borrower hereby requests that such loan be repayable in accordance with the terms of the Fifth Amended and Restated Promissory Note, [converted to a] [Base Rate Loan] [Euro-Dollar Loan] [continued as a] [Euro-Dollar Loan] in the original aggregate principal amount of $945,000 (__________ to be made on such date, and for interest to accrue thereon at the "New Note"), which rate established by the Credit Agreement for [Base Rate Loans] [Euro-Dollar Loans]. [The duration of the Interest Period with respect thereto shall be executed by both Phoenix and GED[1 month] [2 months] [3 months] [30 days][60 days] [90 days]]. The principal balance Borrower has caused this Notice of Continuation or Conversion to be executed and delivered by its duly authorized officer this ______ day of ____________, 2002. [Insert Name of Borrower] By: __________________________________ Title: ______________________ EXHIBIT F COMPLIANCE CERTIFICATE Reference is made to the New Note shall be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory NoteCredit Agreement dated as of August 23, 2002 (as modified and supplemented and in effect from time to time, the "Credit Agreement") among ▇▇▇▇, Inc., as Borrower, the Banks from time to time parties thereto, Wachovia Bank, National Association, as Agent. Capitalized terms used herein shall have the meanings ascribed thereto in the original principal amount Credit Agreement. Pursuant to Section 5.01(c) of $825,000the Credit Agreement,________________, dated January 11the duly authorized ______________________________ of ▇▇▇▇, 1995 (Inc., hereby certifies to the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make Agent and the advance set forth above, you agree to pay to us a facility fee Banks that the information contained in the amount Compliance Check List attached hereto is true, accurate and complete as of $3,000_______________, which shall be charged to your account ______, and that no Default is in existence on and as of the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE▇▇▇▇, INC. By: /s/ --------------------------------- ________________________________ Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES:______________________ EXHIBIT F cont'd CULP, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June COMPLIANCE CHECK LIST _________________________ _______________, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").______,
Appears in 1 contract
Sources: Credit Agreement (Culp Inc)
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you a $314,000 "reload" pursuant to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms Section 2.02 of the Fifth Amended and Restated Promissory Note, Credit Agreement. The Borrower hereby requests a [Syndicated Borrowing] which is a [Euro-Dollar Borrowing] [Base Rate Borrowing] [Swing Loan Borrowing][Foreign Currency Borrowing in][SPECIFY FOREIGN CURRENCY] in the original aggregate principal amount of [the Dollar Equivalent of] $945,000 (the "New Note"), which shall be executed by both Phoenix and GED. The principal balance of the New Note shall ___________ to be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ______________, 1996 FOR VALUE RECEIVED____, PHOENIX LABORATORIESand for interest to accrue thereon at the rate established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans] [Foreign Currency Loans]. The duration of the Interest Period with respect thereto shall be [1 month] [2 months] [3 months] [6 months] [30 days] [60 days] [90 days] [120 days]. The Borrower has caused this Notice of Borrowing to be executed and delivered by its duly authorized officer this _____ day of ___________, INC_____. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ GUIL▇▇▇▇ ▇▇▇▇▇, or at such other place ▇▇C. By:_______________________________ Title: EXHIBIT F COMPLIANCE CERTIFICATE Reference is made to the Credit Agreement dated as Payee or any holder hereof may of September 26, 1995 (as modified and supplemented and in effect from time to time designatetime, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security "Credit Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ among Guil▇▇▇▇ ▇▇▇▇▇▇ , ▇▇▇ ▇▇▇▇c., ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18the Banks from time to time parties thereto, 1996 Phoenix Laboratoriesand Wachovia Bank of Georgia, Inc. Great Earth DistributionN.A., Inc. ▇▇▇ ▇▇▇▇▇▇ as Agent. Capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement. Pursuant to Section 5.01(c) of the Credit Agreement, _______________, the duly authorized ____________________ of Guil▇▇▇▇ ▇▇▇▇▇, ▇▇c., hereby (i) certifies to the Agent and the Banks that the information contained in the Compliance Check List attached hereto is true, accurate and complete as of ______________, ____, and that no Default is in existence on and as of the date hereof and (ii) restates and reaffirms that the representations and warranties contained in Article IV of the Credit Agreement are true on and as of the date hereof as though restated on and as of this date. GUIL▇▇▇▇ ▇▇▇▇▇, ▇▇C. By: ------------------------- Title: 107 115 COMPLIANCE CHECK LIST GUIL▇▇▇▇ NY 11801 RE: Security Agreement (Accounts▇▇▇▇▇, Etc.) dated February 17▇▇C. _______________________ _____________, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements")._____
Appears in 1 contract
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you a $314,000 "reload" pursuant to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms Section 2.02 of the Fifth Amended and Restated Promissory Note, Credit Agreement. The Borrower hereby requests a [Syndicated Borrowing] which is a [Euro-Dollar Borrowing] [Base Rate Borrowing] [Swing Loan Borrowing][Foreign Currency Borrowing in][SPECIFY FOREIGN CURRENCY] in the original aggregate principal amount of $945,000 ([the "New Note")Dollar Equivalent of] $ to be made on , which , and for interest to accrue thereon at the rate established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans] [Foreign Currency Loans]. The duration of the Interest Period with respect thereto shall be executed by both Phoenix and GED[1 month] [2 months] [3 months] [6 months]. The principal balance Borrower has caused this Notice of the New Note shall Borrowing to be made up executed and delivered by its duly authorized officer this day of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCEGUILFORD MILLS, INC. By: /s/ --------------------------------- --------------------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES--------------------------------------- 100 EXHIBIT F --------- COMPLIANCE CERTIFICATE Reference is made to the Credit Agreement dated as of May 26, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION2000 (as modified and supplemented and in effect from time to time, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "PayorCredit Agreement")) among Guilford Mills, jointly and severally hereby promise to pay to Inc., the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may Banks from time to time designateparties thereto, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoingN.A., as Administrative Agent, First Union National Bank, as Syndication Agent and Bank One, N.A., as Documentation Agent. Capitalized terms used herein shall have the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, meanings ascribed thereto in the original principal amount Credit Agreement. Pursuant to Section 5.01(c) [or 5.05(a)]of the Credit Agreement, , the duly authorized of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced Guilford Mills, Inc., hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents certifies to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇Administrative A▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18anks that the information contained in the Compliance Check List attached hereto is true, 1996 Phoenix Laboratoriesaccurate and complete as of , Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/that no Default is in existence on and as of the date hereof and (ii) restates and reaffirms that the representations and warranties contained in Article IV of the Credit FinanceAgreement are true on and as of the date hereof as though restated on and as of this date. GUILFORD MILLS, Inc. INC. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing Agreements").SEAL) By: --------------------------------------------- Title: --------------------------------------- 101
Appears in 1 contract
Gentlemen. You Unless otherwise defined herein, capitalized terms used herein shall have requested and we have agreed the meanings attributable thereto in the Credit Agreement. This Notice of Borrowing is delivered to grant you a $314,000 "reload" pursuant to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms Section 2.02 of the Fifth Amended and Restated Promissory Note, in the original principal amount of $945,000 (the "New Note"), which shall be executed by both Phoenix and GEDCredit Agreement. [The principal balance of the New Note shall be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ Borrower] [Russ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTIONope Limited], INCas the Borrower with respect to Foreign Currency Borrowings]] hereby requests a [Euro-Dollar Borrowing] [Base Rate Borrowing] [Foreign Currency Borrowing] [Swing Loan Borrowing] in the aggregate principal amount of [the Dollar Equivalent of] $__________ to be made on ______________, ______, and for interest to accrue thereon at the rate established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans] [Foreign Currency Loans]. By: /s/ [The duration of the Interest Period with respect thereto shall be [1 month] [2 months] [3 months] [6 months]]. The Borrower has caused this Notice of Borrowing to be executed and delivered by its duly authorized officer this _________ day of ______________, ______. RUSS▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇PORATION [AS AGENT FOR RUSS▇▇▇ ▇▇▇▇ ------------------------------------- OPE LIMITED] [ADD IF APPROPRIATE] By: _________________________________________ Title: 113 122 EXHIBIT E-2 NOTICE OF CONTINUATION OR CONVERSION ---------------------, ------ Wachovia Bank, N.A., as Administrative Agent 191 ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇▇ . ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇-▇▇▇▇ ▇▇▇▇ ention: Syndications Group Re: Credit Agreement (as amended and Evergood Products Corporation (modified from time to time, the "GuarantorsCredit Agreement") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to PayeeOctober 15, in the principal amount hereof1999, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ among Russ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTIONporation, INC. By: /s/ Russ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectivelyope Limited, the "Financing Agreements")Banks from time to time parties thereto, Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank, Atlanta, as Syndication Agent and First Union National Bank, as Documentation Agent.
Appears in 1 contract
Sources: Credit Agreement (Russell Corp)
Gentlemen. You have requested are hereby instructed, effective on _____________ (the “Servicing Transfer Date”), to service the Mortgage Loans listed on Exhibit A attached hereto to _______________. From and we have agreed to grant you a $314,000 "reload" after the Servicing Transfer Date, the Mortgage Loans listed on Exhibit A shall no longer be subject to the machinery term loan, which advance of $314,000 shall be repayable in accordance with the terms provisions of the Fifth Amended and Restated Promissory Note, in the original principal amount of $945,000 (the "New Note"), which shall be executed by both Phoenix and GEDServicing Control Agreement. The principal balance of the New Note shall be made up of a $314,000 advance to repay the amount presently outstanding to you in excess of the contractual formulas in your Financing Agreements and the sum of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, in the original principal amount of $825,000, dated January 11, 1995 (the "Old Note") on which both of you are liable as co-makers. As an inducement to us to make the advance set forth above, you agree to pay to us a facility fee in the amount of $3,000, which shall be charged to your account on the date hereof. Except as hereinabove set forth, the Financing Agreements shall remain unmodified and in full force and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE▇▇▇▇▇▇▇▇▇ MORTGAGE HOME LOANS, INC. By: /s/ --------------------------------- Name: Title: VICE PRESIDENT ------------------------------ [LENDER 1] By: Name: Title: [LENDER 2] By: Name: Title: ACKNOWLEDGED AND AGREED: PHOENIX LABORATORIES[SERVICER] By: Name: Title: , 20 ▇▇▇▇▇ Fargo Home Mortgage, Inc. hereby certifies that it has established the account described below as a Custodial Account pursuant to Section 4.04 of the Seller's Warranties and Servicing Agreement, dated as of , 20 ,. Title of Account: ▇▇▇▇▇ Fargo Home Mortgage, Inc. in trust for the Purchaser and/or subsequent purchasers of Mortgage Loans, and various Mortgagors - P & I Address of office or branch at which Account is maintained: ▇▇▇▇▇ FARGO HOME MORTGAGE, INC. Company By: /s/ Name: Title: 20 ▇▇▇▇▇ Fargo Home Mortgage, Inc. hereby certifies that it has established the account described below as an Escrow Account pursuant to Section 4.06 of the Seller's Warranties and Servicing Agreement, dated as of 20 . Title of Account: ▇▇▇▇▇ Fargo Home Mortgage, Inc. in trust for the Purchaser and/or subsequent purchasers of Mortgage Loans, and various Mortgagors - T & I Address of office or branch at which account is maintained: ▇▇▇▇▇ FARGO HOME MORTGAGE, INC. Company By: Name: Title: This is a Purchase Agreement (the "Agreement"), dated as of August 1, 2002 by and between ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc., having an office at ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Washington Avenue, Suite 302, Santa Fe, New Mexico 87501 (the "Purchaser") and ▇▇▇▇▇ ------------------------------------- Fargo Home Mortgage, Inc., having an ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇ EVERGOOD PRODUCTS CORPORATION By: /s/ ▇▇▇ ▇▇▇▇ --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "Payor"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ , ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder hereof may from time to time designate, the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive month, commencing July 1, 1996, and one (1) final installment in the amount of the entire unpaid principal balance of this Note, payable February 17, 1997. Payor hereby further promises to pay interest to Payee in like money at said office or place on the unpaid principal balance hereof, computed at the rate of three and one-half percent (3 1/2%) per annum plus the prime rate as announced by Chemical Bank or its successor, in New York, New York from time to time as its prime rate (the prime rate is not intended to be the lowest rate of interest charged by Chemical Bank to its borrowers) and such interest shall be payable monthly on the first (1st) day of each month, commencing July 1, 1996. Interest shall be calculated on the basis of a 360-day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (Accounts, Contract Rights, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor and Fidelcor Business Credit Corporation ("Fidelcor"), assignor of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee or evidencing or creating indebtedness of Payor to Payee, all guaranties executed by third parties guaranteeing Payor's obligations to Payee, including those executed by: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and Evergood Products Corporation (the "Guarantors") (the foregoing, as the same may now exist and have been and may hereafter be amended, modified, replaced or supplemented, are hereafter collectively referred to as the "Financing Agreements"). This Note supersedes and replaces but does not extinguish any of the unpaid liabilities and obligations under the Fourth Amended and Restated Promissory Note dated January 11, 1995, in the original principal amount of $825,000.00 by Payor in favor of Payee (the "Existing Note"). The indebtedness of Payor to Payee evidenced hereby includes (i) the unpaid balance of the indebtedness including unpaid interest heretofore evidenced by the Existing Note; and (ii) an indebtedness of $314,000 representing an advance made by Payee to Payor on the date hereof, all of which shall be repayable together with interest accrued and accruing and other sums in accordance with the terms hereof. Payor hereby acknowledges that Payor is as of the date hereof indebted to Payee, in the principal amount hereof, together with interest accrued and accruing through and after the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement contained herein shall not, in any manner be construed to constitute payment of, or impair, limit, cancel or extinguish the indebtedness evidenced by the Existing Note and the liens and security interests securing such indebtedness shall not in any manner be impaired, limited, terminated, waived or released hereby. At the time any payment is due hereunder, Payee may, at its option, charge the amount thereof to any account of Payor maintained by Payee. If an event of default shall occur for any reason under any of the Financing Agreements, or if any of the Financing Agreements shall be terminated or not be renewed for any reason whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable law or otherwise (all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently) Payee may, at its option, declare any or all of Payor's obligations under the Financing Agreements, including, but not limited to, all amounts owing under this Note, to be due and payable, whereupon the then unpaid balance hereof together with all interest accrued thereon, shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's fees. Payee shall not be required to resort to any of the aforementioned collateral for payment, but may proceed against Payor and/or the Guarantors in such order and manner as Payee may choose. None of the rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof. Payor hereby waives diligence, demand, presentment, protest and notice of any kind and assents to extensions of time of payment, release, surrender or substitution of collateral security, or forbearance or other indulgence, without notice. In the event of any litigation with respect to any of the Financing Agreements, Payor waives the right to a trial by jury, all rights of set-off, and any right to interpose permissive counterclaims and cross-claims, and Payor consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State. Payor further waives personal service of any and all process upon Payor and consents that all such service of process may be made by certified mail, return receipt requested, directed to Payor at the address listed above or of which Payor advises Payee, in writing, and. service so made shall be deemed complete three days after the same shall have been posted. This Note shall be governed by and construed, and all rights and obligations hereunder determined, in accordance with the laws of the State of New York, and shall be binding upon the successors and assigns of Payor and inure to the benefit of Payee, its successors, endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ ▇▇▇ ▇▇▇▇ ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") and Great Earth Distribution, Inc. ("GED"), and The CIT Group/Credit Finance, Inc. ("CIT"), assignee of Fidelcor Business Credit Corporation, and all related agreements, amendments, documents and instruments (collectively, the "Financing AgreementsSeller").
Appears in 1 contract
Sources: Servicing Agreement (Greenwich Capital Acceptance Inc)