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/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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
Samples: 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 (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/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 [Euro-Dollar Loans] [Base Rate 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 , INC199 . GABLES REALTY LIMITED PARTNERSHIP (SEAL) By: Gables GP, Inc., its sole general partner By: __________________________________________ Xxxxxx X. Xxxxx, Xx., 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: __________________________________________ Xxxxxx X. Xxxxx, Xx., Senior Vice President EXHIBIT F --------- COMPLIANCE CERTIFICATE ---------------------- Reference is made to the Second Amended and GREAT EARTH DISTRIBUTIONRestated Credit Agreement dated as of August 14, INC. 2000 (individually as modified and collectively supplemented and in effect from time to time, the "PayorCredit Agreement")) among Gables Realty Limited Partnership and Xxxxx-Tennessee Properties, jointly and severally hereby promise to pay to as the order of THE CIT GROUP/CREDIT FINANCEBorrowers, INC., a Delaware corporation ("Payee"), at its offices located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as Payee or any holder hereof may 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION__________________________________________ [Name and title of Executive Officer, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxxother than Secretary] COMPLIANCE CHECKLIST -------------------- COMPLIANCE CHECK LIST Gables Realty Limited Partnership _________________________ _______________, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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
Samples: Credit Agreement (Gables Residential Trust), Credit Agreement (Gables Realty Limited Partnership)
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/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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_____. GUILXXXX XXXXX, XXC. By:_______________________________ Title: EXHIBIT F COMPLIANCE CERTIFICATE Reference is made to the Credit Agreement dated as of September 26, 1995 (as modified and GREAT EARTH DISTRIBUTIONsupplemented and in effect from time to time, INC. (individually and collectively the "PayorCredit Agreement")) among Guilxxxx Xxxxx, jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, INCXxc., a Delaware corporation ("Payee"), at its offices located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as Payee or any holder hereof may the Banks from time to time designateparties 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 principal sum duly authorized ____________________ of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money of the United StatesGuilxxxx Xxxxx, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable on the first (1st) day of each consecutive monthXxc., 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 Agent and the Banks that the information contained in the Security Agreement (AccountsCompliance Check List attached hereto is true, Contract Rightsaccurate and complete 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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 IV of the principal amount hereof, together with interest accrued Credit Agreement are true on and accruing through and after as of the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment hereof as though restated on 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 invaliddate. GUILXXXX XXXXX, 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, INCXXC. By: /s/ Xxx Xxxx ---------------------------- ------------------------- Title: Vice Pres107 115 COMPLIANCE CHECK LIST GUILXXXX XXXXX, XXC. ---------------------------- GREAT EARTH DISTRIBUTION_______________________ _____________, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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 Reference is made to grant you a $314,000 certain (i) Parent Stock Pledge Agreement dated July 20, 1999 (herein called "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 NoteParent Pledge Agreement"), which among Long Distance International Inc., a Florida corporation (herein called "the Company"), and Fredxxxxx XxXxxx, xx collateral agent for the ratable benefit of himself and the Lenders to the Term Loan Agreement ("DeLuxx"); and (ii) Stock Pledge Agreement dated July 20, 1999 (herein called "Sub Pledge Agreement") among LDI Acquisition Sub Inc. and DeLuxx. Xxpitalized terms used herein and defined in the Parent Pledge Agreement shall be executed by both Phoenix and GEDhave the same meanings as set forth therein unless otherwise specifically defined herein. The principal balance seventh paragraph of each of the New Note shall be made up Sub Pledge Agreement and Parent Pledge Agreement is hereby amended by deleting the words "and on ten (10) days prior notice to the Pledgor, without the curing by the Pledgor or the waiving by the Collateral Agent of a $314,000 advance to repay the amount presently outstanding to you in excess such Event 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, Default within such time," in the original principal amount third, fourth and fifth lines 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 hereofsuch seventh paragraph. Except as hereinabove set forthotherwise specifically amended herein, each of the Financing Agreements Sub Pledge Agreement and the Parent Pledge Agreement 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 This Amendment may be executed in one or more counterparts, each of this letter. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 which shall be deemed to be an original as against the lowest rate party executing the same and all of interest charged by Chemical Bank to its borrowers) and such interest which together shall be payable monthly on deemed to constitute one and the first (1st) day of each month, commencing July 1, 1996same agreement. Interest shall This Amendment is to 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 governed by the laws of the State of New York. This Note is secured by (i) the collateral described in the Security Agreement (AccountsVery truly yours, Contract RightsLDI ACQUISITION SUB INC. By: /s/ Davix X. Xxxx ------------------------------ Davix X. Xxxx Chief Executive Officer LONG DISTANCE INTERNATIONAL INC. By: /s/ Davix X. Xxxx ------------------------------ Davix X. Xxxx Chief Executive Officer AGREED: /s/ Fredxxxxx X. XxXxxx ---------------------------------------- Fredxxxxx X. XxXxxx, 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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 LABORATORIESxx Collateral Agent WORLD ACCESS, INC. By: /s/ Xxx Xxxx ---------------------------- W. Tod Xxxxx --------------------------------- Name: Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTIONTHE BANK OF NEW YORK, INC. not in its individual capacity, but solely as Trustee By: /s/ Annexxx X. Xxx Xxxx ---------------------------- --------------------------------- Name: Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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
Samples: Long Distance International Inc
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 a security interest in certain of our accounts receivable. You may have been previously notified of this relationship. As of this date, payment for the invoice(s) listed on the attached as well as all other invoices, will be made to New Horizon Capital, LLC at P.O. Box 53097, Phoenix, Arizona 85072. These instructions shall be executed remxxx xx xxxxxx xxxxx xxxx xxxx xx xxx xre notified in writing by both Phoenix and GEDNHC to the contrary. The principal balance Please acknowledge your receipt of the New Note shall be made up of a $314,000 advance to repay the amount presently outstanding to you in excess following invoice(s), verification 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 information on the date hereof. Except as hereinabove set forthattached list, and that the Financing Agreements shall remain unmodified amounts payable on the attached list are fully earned, due and payable and will be paid in full force without any offset, counter claim or deduction whatsoever. Thank you for your cooperation and effect. Please indicate your agreement with the foregoing by signing and returning to us the enclosed copy of assistance in this lettermatter. Very truly yours, Michael Hirschey CEO FACSIMILE OR ORIGINAL-ALL PARTIES AGREE THAT A XXXXXXXXX XX XXHER COPY OF THIS DOCUMENT AND THE CIT GROUP/CREDIT FINANCESIGNATURES HEREIN MAY BE USED FOR ANY PURPOSE IN LIEU OF THE ORIGINAL DOCUMENT. Agreed, INC. ByAcknowledged and Accepted by: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES------------------------------------------------------- Print Business Name ------------------------------------------------------- Signature Date ------------------------------------------------------ Print Name Print Title EXHIBIT D --------- OFFICERS' VALIDITY CERTIFICATE This Officers' Validity Certificate ("Certificate") dated as of the 3rd day of July, INC. By: /s/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION2003, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New Yorkis provided by each of the undersigned officers (each an "Officer" and collectively, New York June ____, 1996 FOR VALUE RECEIVED, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "PayorOfficers"), jointly and severally hereby promise to pay to the order ) of THE CIT GROUP/CREDIT FINANCEONESOURCE TECHNOLOGIES, INC., a Delaware corporation Corporation ("PayeeONESOURCE"), at its offices located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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 PayeeNew Horizon Capital, its successorsLLC., 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/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. an Arizona Limited Liability Company ("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 AgreementsNHC").
Appears in 1 contract
Samples: 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 NoteCredit Agreement. [The Borrower] [Russxxx Xxxope Limited], as 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 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/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June ______________, 1996 ______, 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 [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 ______________, ______. RUSSXXX XXXPORATION [AS AGENT FOR VALUE RECEIVEDRUSSXXX XXXOPE LIMITED] [ADD IF APPROPRIATE] By: _________________________________________ Title: 113 122 EXHIBIT E-2 NOTICE OF CONTINUATION OR CONVERSION ---------------------, PHOENIX LABORATORIES------ Wachovia Bank, INC. N.A., as Administrative Agent 191 Xxxxxxxxx Xxxxxx, X.X. Xxxxxxx, Xxxxxxx 00000-0000 Xxxention: Syndications Group Re: Credit Agreement (as amended and GREAT EARTH DISTRIBUTIONmodified from time to time, INC. (individually and collectively the "PayorCredit Agreement")) dated as of October 15, jointly 1999, by and severally hereby promise to pay to among Russxxx Xxxporation, Russxxx Xxxope Limited, the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 StatesWachovia Bank, 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: Xxxxxx Xxxx, Xxxxxx Xxxx and Evergood Products Corporation (the "Guarantors") (the foregoingN.A., as the same may now exist Administrative Agent, Suntrust Bank, Atlanta, as Syndication Agent and have been and may hereafter be amendedFirst Union National Bank, 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/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx NY 11801 RE: Security Agreement (Accounts, EtcDocumentation Agent.) 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
Samples: 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 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/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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
Samples: 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 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 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/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 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][Syndicated Foreign Currency Loans]. The duration of three and one-half percent the Interest Period with respect thereto (3 1/2%other than Swing Loan Borrowings bearing interest at the Wachovia Alternative Rate which have an Interest Period of 5 Domestic Business Days) 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 [1 month] [2 months] [3 months] [6 months] [30 days]. The Borrowing requested hereunder for [insert name of each month, commencing July 1, 1996. Interest Borrower] shall be calculated on the basis advanced to such Borrower in [insert name 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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")country from Foreign Jurisdiction Letter]. 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 Aggregate Outstanding Loans on the date hereof, all without giving effect to the Borrowing requested hereby, is [less than] [equal to or greater than] 66 2/3% of which the Aggregate Commitments. The Parent's current Debt Rating is [_________]. The Borrower, through the Parent, has caused this Notice of Borrowing to be executed and delivered by its duly authorized officer this _____ day of ___________, _____. EQUIFAX INC. By:_______________________________ Title: EXHIBIT 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 be repayable together with interest accrued 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 accruing the Banks as required by Section 5.01(c) that the information contained in the Compliance Check List attached hereto is true, accurate and other sums 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 accordance with the terms hereof. Payor hereby acknowledges that Payor is existence on and as of the date hereof indebted and (B) restates and reaffirms as required by Section 5.01(c) that to Payeethe 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: 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 principal amount hereofCredit Agreement. Pursuant to Section 3.01(e) of the Credit Agreement, together with interest accrued _____________________________, the duly authorized ____________________ of Equifax Inc. hereby certifies to the Agent and accruing through the Banks as required by Section 3.01(e) that (i) no Default has occurred and after is continuing as of the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment and restatement (ii) the representations and warranties 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 Article IV of the Financing Agreements, or if any Credit Agreement are true on and as of the Financing Agreements shall be terminated or not be renewed for any reason whatsoeverdate hereof (x) as stated as to representations and warranties which contain materiality limitations, then and (y) and in any such event, in addition all material respects as to all rights other representations 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 feeswarranties. 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 Certified 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 invalid21st day of November, illegal or unenforceable, the validity of all other terms and provisions hereof shall in no way be affected thereby1997. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, EQUIFAX INC. By: /s/ Xxx Xxxx ---------------------------- :___________________________ Printed Name:______________ Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION:_____________________ EXHIBIT H --------- MONEY MARKET QUOTE REQUEST -------------------------- Wachovia Bank, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance N.A., as Agent 000 Xxxx 00xx Xxxxxx Xxx XxxxXxxxxxxxx Xxxxxx, XX 00000 Tel: 000-000X.X. Xxxxxxx, Xxxxxxx 00000-0000 FaxAttention: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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
Samples: 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/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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/ Xxx Xxxx ---------------------------- --------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION141 89 COMPLIANCE CHECK LIST (Savannah Foods & Industries, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx XxxxInc.) __________________________ _____________, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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
Samples: Master Credit Agreement (Savannah Foods & Industries 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 Advance Request 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. Purchaser hereby requests an Advance in the original aggregate principal amount of $945,000 (the "New Note")[__________] to be made on [___________ __], [20__], which shall date is the next-occurring Settlement Date, at the Interest Rate as determined by the Credit Agreement. Purchaser hereby represents and warrants that each of the conditions set forth in Section 8.02 of the Credit Agreement is satisfied as of this date and will continue to be satisfied as of the date of the Advance described above. In addition, Purchaser represents and warrants that each of the representations and warranties made in the Credit Agreement is true and correct in all material respects as if made on this date. Purchaser has caused this Advance Request to be executed and delivered by both Phoenix and GEDits duly authorized Senior Officer this ____ day of _____________ , 200___ . 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, BUCKEYE RECEIVABLES INC. By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June __________________________________________________ Title: _______________________________________________ EXHIBIT B BLOCKED ACCOUNT AGREEMENT CONTROL AGREEMENT FOR NOTIFICATION AND ACKNOWLEDGMENT OF PLEDGE OR SECURITY INTEREST IN ACCOUNTS This CONTROL AGREEMENT is made and entered into as of this ____ day of December, 1996 FOR VALUE RECEIVED2001, PHOENIX LABORATORIES, INC. by and GREAT EARTH DISTRIBUTION, INC. among FIRST UNION NATIONAL BANK (individually and collectively the "PayorDepository Bank"), jointly and severally hereby promise to pay to the order of THE CIT GROUP/CREDIT FINANCE, BUCKEYE RECEIVABLES INC., a Delaware corporation ("PayeeBorrower"), at its offices located at 000 Xxxx 00xx Xxxxxxand WACHOVIA BANK, Xxx XxxxN.A., Xxx Xxxx 00000a national banking association ("Lender"). Statement of Facts Depository Bank acknowledges that as of this date it maintains a remittance Lockbox (as such term is defined below) and demand deposit account number 2000013956482 in the name of Borrower (the "Account"), or at such other place as Payee or any holder hereof may both being governed by the terms and conditions of the Deposit Agreement and Disclosures for Non-Personal Accounts published by the Depository Bank from time to time designate, ("Deposit Agreement"). Borrower has assigned and granted to Lender a pledge and security interest in the principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money contents of the United States, in eight installments of FIFTEEN THOUSAND DOLLARS ($15,000) each payable lockbox and the Account and all funds 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 deposit therein 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 secure Borrower's obligations to its borrowers) Lender under that certain Credit 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 (Accountsdated as of December 5, Contract Rights2001, Instruments and Goods pertaining thereto), the Inventory Security Agreement and the Equipment Security Agreement, each executed February 17, 1988 by and between Payor Lender 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: Xxxxxx Xxxx, Xxxxxx Xxxx and Evergood Products Corporation (the "Guarantors") (the foregoingBorrower, as the same may now exist and have been and may hereafter be amended, modifiedrestated, replaced or supplemented, are hereafter collectively referred or otherwise modified from time 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")time. The indebtedness of Payor parties desire 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 enter into this Agreement in order 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 set forth their relative 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 duties with respect to the Lockbox, the Account and all contents and amounts on deposit therein from time to time. To the extent that any conflict may exist between the provisions of the Financing AgreementsDeposit Agreement and this Agreement, 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 then this Agreement 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/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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
Samples: Credit and Security Agreement (Buckeye 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] 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/ Xxx Xxxx --------------------------------- ---------------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION103 COMPLIANCE CHECK LIST Flowers Industries, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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 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 (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") has an Interest Period ending 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/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ FIFTH AMENDED AND RESTATED PROMISSORY NOTE $945,000 New York, New York June _____________, 1996 [the Borrower] [Russxxx Xxxope 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: Foreign Currency Loans may only be continued in the same Foreign Currency, and may not be converted to any other type of Loan. The Borrower has caused this Notice of Continuation or Conversion to be executed and delivered by its duly authorized officer this ______ day of ____________, _____. RUSSXXX XXXPORATION [AS AGENT FOR VALUE RECEIVEDRUSSXXX XXXOPE LIMITED] [ADD IF APPROPRIATE] By: --------------------------------------- Title: 115 124 EXHIBIT F COMPLIANCE CERTIFICATE Reference is made to the Credit Agreement dated as of October 15, PHOENIX LABORATORIES1999 (as modified and supplemented and in effect from time to time, INC. and GREAT EARTH DISTRIBUTION, INC. (individually and collectively the "PayorCredit Agreement")) among Russxxx Xxxporation, jointly and severally hereby promise to pay to Russxxx Xxxope Limited, the order of THE CIT GROUP/CREDIT FINANCE, INC., a Delaware corporation ("Payee"), at its offices located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as Payee or any holder hereof may Banks from time to time designateparties 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 principal sum of NINE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($945,000.00) in lawful money duly authorized [Chief Financial Officer/Chief Accounting Officer] of the United StatesBorrower, 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 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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 IV of the principal amount hereof, together with interest accrued Credit Agreement are true on and accruing through and after as of the date hereof, without offset, defense or counterclaim of any kind, nature or description whatsoever. The amendment hereof as though restated on 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 therebydate. The execution and delivery of this Note has been authorized by the board of directors of Payor. PHOENIX LABORATORIES, INC. RUSSXXX XXXPORATION (SEAL) By: /s/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group------------------------------------ Name and title of [Chief Financial Officer/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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
Samples: Credit Agreement (Russell Corp)
Gentlemen. You have requested and we have agreed to grant you a $314,000 "reload" The Lenders hereby represent 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/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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"), Parties and The CIT Group/Credit FinanceBusiness Credit, Inc. ("CIT"), assignee that the Lenders are the holders of Fidelcor Business the Credit CorporationAgreement described above. The Lenders further represent to the Credit Parties and CIT that, as of the date hereof, the total amount of outstanding loans under the Credit Agreement and all other liabilities or indebtedness of the Co-Borrowers to the Lenders under the Credit Agreement and the other loan or collateral documents related agreements, amendments, documents and instruments thereto (collectively, the "Financing AgreementsLoan Documents")., is $3,637,879.24 (collectively, the "Existing Obligations"). The Lenders have agreed to release their liens and security interests in the personal property of the Credit Parties and to terminate the Credit Agreement and the other Loan Documents upon satisfaction of the following conditions: (a) $2,950,000 of the Existing Obligations shall be refinanced and the Credit Parties shall execute and deliver to the Lenders term notes, in form and substance satisfactory to the Lenders, in the aggregate amount of $2,9500,000 (the "Term Notes"), (b) the Credit Parties shall deliver to the 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 real property and improvements thereon known as 100 Marcus Boulevard, Hauppauge, New York (the "Premises") as collatxxxx xxxxxxxx xxx $0,000,000 xx xxx xxxxxations of the Credit Parties under the Term Notes; (c) the Credit Parties shall pay to the Administrative Agent the sum of $250,000, for the ratable distribution to the Lenders (the "Payment"), such 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, 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 wire transfer instructions are as follows:
Appears in 1 contract
Samples: Boundless Corp
Gentlemen. You have requested and we have agreed to grant you a Section 7.5 (g) (iii) of The Securities Purchase Agreement dated January 31, 2002 among us ("SPA") provides in part that: "So long as either (x) $314,000 "reload" to the machinery term loan, which advance of $314,000 shall be repayable 2,500,000 in accordance with the terms of the Fifth Amended and Restated Promissory Note, in the original aggregate principal amount of $945,000 Notes are held by Purchasers or (the "New Note"), which shall be executed by both Phoenix and GED. The principal balance y) Warrants or Warrant Shares representing at least twenty percent (20%) of the New Note shall be made up outstanding shares of a $314,000 advance to repay the amount presently outstanding to you in excess Common Stock (assuming exercise of the contractual formulas Warrants in your Financing Agreements and full) are held by Purchasers, the Company shall (i) cause the number of members of the Board to equal the sum of approximately $631,000, representing (5) plus the currently unpaid principal balance number of Wynnchurch Directors and (ii) use its best efforts to ensure that the Wynnchurch Directors continue to serve as members of the Fourth Amended and Restated Promissory NoteBoard." In connection with the expansion of the size of the Board of Directors to ten (10) members to accommodate the election of Robert Stanojev as Chairman xx xxx Xxxxx, 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 forthxt is agreed that effective with Mr. Stanojev's election, the Financing Agreements xxxxxx xx xxxbers of the Board shall remain unmodified and in full force and effect. Please indicate your agreement with equal 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/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 six ($945,000.006) 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 (number of Wynnchurch Directors until the prime rate is not intended to be the lowest rate earlier 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 resignation of Payee, and all related agreements, instruments (including but not limited to this Note) and documents granting collateral security to Payee a director other than a Wynnchurch Director 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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 2003 annual meeting 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 payableCompany stockholders, whereupon the then unpaid balance hereof together with all interest accrued thereon, original provision of Section 7.5 (g) (iii) shall forthwith become due and payable, together with costs and expenses of collection, including reasonable attorney's feesagain take effect. Payee Capitalized terms used but not defined herein shall not be required have the meanings given 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 them in the exercise thereofSPA. Payor hereby waives diligenceSIGNATURE PAGE TO WAIVER OF PROVISION REGARDING NUMBER OF BOARD SEATS WYNNCHURCH CAPITAL PARTNERS, demandL.P. By: Wynnchurch Partners, 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 PayeeL.P., 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. general partner By: /s/ Xxx Xxxx ---------------------------- Wynnchurch Management Inc., its general partner By:/s/ John Hatherly ----------------- Name: John Hatherly Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTIONPresident WYNNCHURCH CAPITAL PARTNERS CANADA, INC. L.P. By: /s/ Xxx Xxxx ---------------------------- Wynnchurch Partners Canada, L.P., its general partner By: Wynnchurch GP Canada, its general partner By:/s/ John Hatherly ----------------- Name: John Hatherly Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 TelPresident ALTERNATIVE RESOURCES CORPORATION By:/s/ George Watts ------------------- Name: 000-000-0000 FaxGeorge Watts Title: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx NY 11801 RE: Security Agreement (Accounts, Etc.) dated February 17, 1988 (the "Accounts Agreement"), between Phoenix Laboratories, Inc. ("Phoenix") President 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 Executive Officer
Appears in 1 contract
Samples: Wynnchurch Capital Partners Lp
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 This certificate is delivered in accordance with the terms Article V of the Fifth Amended and Restated Promissory Note, Mortgage. All capitalized terms not defined herein shall have the meanings described to them in the original principal Mortgage. To date, the funds deposited into the Central Account are not sufficient to fund or pay, to the extent required to be funded or paid, the Debt Service Payment Sub-Account, the Basic Carrying Costs Sub-Account, the Operation and Maintenance Expense Sub-Account, the Recurring Replacement Reserve Sub- Account, and the Curtailment Reserve Sub-Account. The amount of the deficiency is ___________ Dollars ($945,000 (the "New Note"______), which shall and such amount must be executed deposited into the Central Account prior to the next Payment Date or an Event of Default will exist under the Mortgage. _________________________, Mortgagee By:_______________________________ Name: Title: EXHIBIT F Cross-collateralized Properties EXHIBIT G [BXXXXXXX'S LETTERHEAD] __________ __. 199_ [Credit Card Company] Re: [$_________] Loan made by both Phoenix [Lender] to [Borrower] Premises: _____________________________________ _____________________________________ The undersigned hereby directs and GEDauthorizes ____________________ to deliver all sums payable to or on behalf of [Borrower] or [Property Manager] by __________________ in connection with the [Property] to the following account: Account No. The principal balance ________________________ ABA No. ____________________________ Account 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 [Lender] This letter and the sum direction and authorization contained herein may not be amended, modified, revoked or superseded without the prior written consent of approximately $631,000, representing the currently unpaid principal balance of the Fourth Amended and Restated Promissory Note, [Lender] its successors or assigns 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 lettereach instance. Very truly yours, THE CIT GROUP/CREDIT FINANCE, INC. [Borrower] Acnowledged and Agreed to: [Credit Card Company] By: /s/ --------------------------------- Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES, INC. By: /s/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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___________________ Name: Xxxxxx Xxxx, Xxxxxx Xxxx 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/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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
Samples: Motels of America 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 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 Xxxx, 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 Xxxx, 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 FINANCEXXXX, INC. By: /s/ --------------------------------- ________________________________ Title: VICE PRESIDENT ------------------------------ AGREED: PHOENIX LABORATORIES:______________________ EXHIBIT F cont'd CULP, INC. By: /s/ Xxx Xxxx --------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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
Samples: 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 [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/ Xxx Xxxx --------------------------------- ----------------------------------- Title: VP ------------------------------ GREAT EARTH DISTRIBUTION106 COMPLIANCE CHECK LIST SPRINGS INDUSTRIES, INC. By: /s/ Xxx Xxxx --------------------------------- Title: PRES. ------------------------------ CONFIRMED: /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx /s/ Xxxxxx Xxxx ------------------------------------- Xxxxxx Xxxx EVERGOOD PRODUCTS CORPORATION By: /s/ Xxx Xxxx --------------------------------- 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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: Xxxxxx Xxxx, Xxxxxx Xxxx 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/ Xxx Xxxx ---------------------------- Title: Vice Pres. ---------------------------- GREAT EARTH DISTRIBUTION, INC. By: /s/ Xxx Xxxx ---------------------------- Title: Pres. ---------------------------- The CIT Group/Credit Finance 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000 THE CIT GROUP November 18, 1996 Phoenix Laboratories, Inc. Great Earth Distribution, Inc. 000 Xxxxxx Xxxx Xxxxxxxxxx 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
