1
EXHIBIT 10(aa)
AMENDED AND RESTATED REVOLVING NOTE
$7,000,000 January 23, 1998
FOR VALUE RECEIVED, the undersigned, SAFETY 1ST, INC., a Massachusetts
corporation, and SAFETY 1ST HOME PRODUCTS CANADA INC., a Canadian federal
corporation, (collectively, the "BORROWERS"), jointly and severally promise to
pay to the order of Finova Capital Corporation (the "LENDER") at care of BT
Commercial Corporation, as Agent, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America and in immediately available funds,
the principal amount of SEVEN MILLION DOLLARS ($7,000,000), or such lesser
amount as may then constitute the unpaid aggregate principal amount of the
Lender's Proportionate Share of the Revolving Loans outstanding on the
Expiration Date.
The Borrowers jointly and severally agree to pay interest at said office,
in like money, on the unpaid principal amount owing hereunder from time to time
from the date hereof until paid in full (both before and after judgment) on the
dates and at the rates specified in Article IV of the Credit Agreement (as
defined below).
If any payment on this note becomes due and payable a day other than a
Business Day such payment shall be extended to the next succeeding Business Day,
and with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension.
This note is one of the Revolving Notes referred to in the Credit
Agreement, dated as of July 30, 1997 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrowers, the
Lender, the other financial institutions parties thereto, BT Commercial.
Corporation, as Agent (in such capacity, the "AGENT") and Bankers Trust
Company, as Issuing Bank (in such capacity, the "ISSUING "BANK"), and is subject
to, and entitled to, all provisions and benefits thereof and is subject to
voluntary and mandatory prepayment in whole or in part as provided therein.
Capitalized terms used herein shall have the meanings given to such terms in the
Credit Agreement unless otherwise defined herein. The Credit Agreement, among
other things, provides for the making of Revolving Loans by the Lender to the
Borrowers from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned.
2
Upon the occurrence and during the continuance of an Event of Default, the
Agent may, among other things, by delivery of written notice to the Borrowers
from the Agent, take any or all of the following actions, without prejudice to
the rights of the Agent, the Lender or any holder of this note to enforce its
claims against the Borrowers: (a) declare all Obligations due hereunder to be
immediately due and payable (except with respect to any Event of Default set
forth in Section 8.1(g) of the Credit Agreement, in which case all Obligations
due hereunder shall automatically become immediately due and payable without the
necessity of any notice or other demand) without presentment, demand, protest or
any other action or obligation of the Lender; and (b) immediately terminate the
Commitments; and at all times thereafter, all loans and advances made by the
Lender pursuant to the Credit Agreement shall be at the Lender's sole
discretion.
This note is secured by the collateral described in the Security Agreements
and other Collateral Documents.
The Borrowers hereby waive presentment, demand, protest and notice of any
kind in connection with this note. No failure to exercise, and no delay in
exercising any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.
This note shall not be revoked or impaired as to either Borrower by the
revocation or release of any obligations of the other Borrower.
Each Borrower hereby agrees that, until the Obligations are paid in full
and the Credit Agreement and all outstanding Letters of Credit are terminated,
it shall not assert any claim or other right that it may now have or hereafter
acquire against the other Borrower that arises from the existence, payment,
performance or enforcement of such Borrower's obligations under this note or the
Credit Agreement, the other Credit Documents or the Obligations or guarantees
thereof, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Agent or any Lender against the other Borrower, or any
collateral securing any Obligation, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the other Borrower, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right. If any amount
shall be paid to either Borrower in violation of the preceding sentence at any
time prior to the indefeasible cash payment in full of the Obligations and the
termination of the Credit Agreement and all outstanding Letters of Credit, such
Borrower shall immediately give the Agent notice of its receipt of such amount
and such amount shall be held in trust for the benefit of the Agent and the
Lenders owed the Obligations which gave rise to such Borrower's right of
recovery, segregated from other funds of such Borrower, and shall forthwith
3
be paid to the Agent to be credited and applied to the Obligations then due and
payable, whether matured or unmatured, in such order as the Agent may determine.
Each Borrower acknowledges that it will receive direct and indirect benefits
from the Credit Agreement and the transactions consummated in connection
therewith and that the waiver set forth in this paragraph is knowingly made in
contemplation of such benefits. Until all of the Obligations shall have been
paid in full in cash and the termination of the Credit Agreement and all
outstanding Letters of Credit, neither Borrower will enforce any other claim or
exercise any other rights which it may have against the other Borrower.
This note (a) is issued in substitution and exchange for (but not in
payment of) the Revolving Note dated October 31, 1997 made by the Borrowers in
favor of the Lender (the "Original Note") and (b) amends and restates the
Original Note in its entirety.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS NOTE SHALL BE GOVERNED
BY THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW PROVISIONS OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND DECISIONS OF THE
STATE OF NEW YORK.
SAFETY 1ST, INC.
Witness: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------- ----------------------------------
Name:
Title:
SAFETY 1ST HOME PRODUCTS CANADA
INC.
Witness: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------- ----------------------------------
Name:
Title:
-3-
