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EXHIBIT 10.68
RESTATED AND AMENDED REVOLVING PROMISSORY NOTE
$15,000,000.00 ALBANY, NEW YORK
AS OF FEBRUARY 18, 2000
This RESTATED AND AMENDED REVOLVING PROMISSORY NOTE is made and executed
this 18th day of February, 2000 by DECORA, INCORPORATED, a Delaware corporation
authorized to do business in the State of New York as DECORA MANUFACTURING and
having an office at 1 Mill Street, Fort Edward, New York 12828 (the "Borrower")
to and in favor of FLEET NATIONAL BANK, its successors and/or assigns, a
national banking association organized and existing under the laws of the United
States of America and having a principal place of business at 69 State Street,
Albany, New York 12207 (the "Bank").
WHEREAS, the Bank is the holder of a $15,000,000.00 Restated and Amended
Promissory Note (Revolving Line of Credit) executed by the Borrower in favor of
the Bank on April 29, 1998 (the "Prior Note"); and
WHEREAS, the Borrower agrees and confirms that the aggregate principal
amount outstanding pursuant to the terms of the Prior Note is $ 10,017,000.00,
all interest having been paid to January 31, 2000, and that there are no
offsets, claims, setoffs, defenses or counterclaims against payment of said
amount; and
WHEREAS, the Borrower and the Bank desire to modify, amend and restate
in full the terms of the Prior Note as hereinafter set forth.
NOW, THEREFORE, the Borrower and the Bank agree that the Prior Note is
hereby modified and restated in full in the principal amount of $15,000,000.00,
with interest payable as hereinafter set forth. Said modified and restated note
is hereinafter called the "Note" and provides as follows:
FOR VALUE RECEIVED, the undersigned, DECORA, INCORPORATED, a Delaware
corporation with its principal place of business at 1 Mill Street, Fort Edward,
New York 12828 (the "Borrower") promises to pay in immediately available funds
to the order of FLEET NATIONAL BANK, a national banking association organized
and existing under the laws of the United States of America, having an office
located at 69 State Street, Albany, New York 12207, its successors and assigns
(the "Bank"), at the Bank's office located at 69 State Street, Albany, New York
12207, or at such other place as may be designated from time to time by the
Bank, the unpaid amount of all sums that have been advanced to or for the
benefit of the Borrower in accordance with the terms hereof as shown on the
records of the Bank, not to exceed the aggregate sum of FIFTEEN MILLION AND
NO/100 DOLLARS ($15,000,000.00), lawful money of the United States of America,
plus interest on the unpaid principal balance, at the Floating Rate computed
from the date hereof. All payments due hereunder shall be in lawful money of the
United States in
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immediately available funds. The records of the Bank, maintained in the ordinary
course of business, shall be prima facie evidence of the existence and amounts
of the Borrower's obligations recorded therein. All computations of interest
under this Note shall be made on the basis of a three hundred sixty (360) day
year and the actual number of days elapsed. Any capitalized term not otherwise
defined herein shall have the meaning ascribed to it in the Loan Agreement (as
defined below). This Note is governed by and subject to all of the
representations, warranties, covenants, terms and conditions contained in the
Loan Agreement.
As used herein, the following terms shall have the following meanings:
Business Day - In respect of any date specified in this Note, a day on which
commercial banks settle payments in New York City.
Default Rate - After maturity or after judgment has been rendered on this Note,
or upon an Event of Default after the expiration of any applicable cure period,
the unpaid principal of all advances under this Note shall, at the option of the
Bank, bear interest at a rate which is four (4) percentage points per annum
greater than that which would otherwise be applicable.
Event of Default - Any of those events defined as an Event of Default under the
Loan Agreement.
Floating Rate - The Prime Rate plus two and one quarter (2 1/4%) percent.
Loan - The loan of $15,000,000.00 by the Bank to the Borrower.
Loan Agreement - That Restated Secured Revolving Line of Credit Agreement
between the Borrower and Bank, dated as of April 29, 1998 as amended by
amendment to Loan Agreement dated the date hereof, and future modifications and
amendments thereto.
Maturity Date - May 1, 2001.
Note - This Restated and Amended Revolving Promissory Note.
Prime Rate - The variable per annum rate of interest so designated from time to
time by Fleet National Bank as its prime rate. The Prime Rate is a reference
rate and does not necessarily represent the lowest or best rate being charged to
any customer. Any change in this interest rate shall be effective on the date
the change in the Prime Rate occurs, without notice to Borrower.
Interest at the Floating Rate shall be payable monthly in arrears commencing
March 1, 2000, and continuing on the first day of each and every month
thereafter until and including April 1, 2001. The entire unpaid balance of
principal, plus accrued interest, on the Loan shall be due and payable in any
event on the Maturity Date. Advances under this Note shall be reflected on the
records of the Bank. The Bank shall not be obligated to make advances under this
Note (1) if an Event of Default has occurred or (2) if in the Bank's sole
judgment, a material adverse change in the Borrower's financial condition has
occurred, or (3) if Borrower has failed to observe or perform
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any other covenant or agreement in the Loan Documents or in any other note or
agreement executed by the Borrower in favor of the Bank.
Events of Default. Upon the occurrence of an Event of Default and the
expiration of any applicable cure period, the Bank may, in its sole discretion,
accelerate payment under this Note and all interest accrued hereon shall become
due and payable forthwith at the election of the holder and the payment and
acceptance of any sum on account of this Note shall not be considered a waiver
of such right of election. No waiver of any default hereunder or under the Loan
Agreement shall be considered a waiver of any other or subsequent default. Upon
an Event of Default the unpaid principal balance due hereunder shall, at the
option of the holder, bear interest at the Default Rate.
Absent an Event of Default, all payments made hereunder shall be applied
first to the payment of accrued interest to the date of payment, second to the
reduction of principal, third to the payment of any late charges and last to the
fees and expenses of the Bank. If an Event of Default occurs hereunder, the Bank
may apply any payments received to any sums due hereunder in such manner as it
deems appropriate.
Limitation on Interest. All agreements between Borrower and Bank are
hereby expressly limited so that in no contingency or event whatsoever, whether
by reason of acceleration of maturity of the indebtedness evidenced hereby or
otherwise, shall the amount paid or agreed to be paid to the Bank for the use or
the forbearance of the indebtedness evidenced hereby exceed the maximum
permissible under applicable law. As used herein, the term "applicable law"
shall mean the law in effect as of the date hereof provided, however, that in
the event there is a change in the law which results in a higher permissible
rate of interest, then this Note shall be governed by such new law as of its
effective date. In this regard, it is expressly agreed that it is the intent of
Borrower and Bank in the execution, delivery and acceptance of this Note to
contract in strict compliance with the laws of the State of New York from time
to time in effect. If under or from any circumstances whatsoever fulfillment of
any provision hereof or of the Loan Documents at the time of performance of such
provision shall be due, shall involve transcending the limit of such validity
prescribed by applicable law, then the obligation to be fulfilled shall
automatically be reduced to the limits of such validity, and if under or from
any circumstances whatsoever the Bank should ever receive as interest an amount
which would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the principal balance evidenced
hereby and not to the payment of interest. This provision shall control every
other provision of all agreements between the Borrower and the Bank.
Security; Setoff. The Borrower hereby grants to Bank a lien, security
interest and right of setoff as security for all liabilities and obligations of
the Borrower to the Bank, whether now existing or hereafter arising, upon and
against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of the Bank or any entity under the
control of FleetBoston Financial Group, Inc. and its successors and/or assigns
or in transit to any one of them. At any time, without demand or notice, the
Bank may set off the same or any part thereof and apply the same to any
liability or obligation of the Borrower even though unmatured
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and regardless of the adequacy of any other collateral securing the Loan. ANY
AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH
RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN, IF ANY, PRIOR TO
EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER
PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVED.
No Waiver by Bank. The powers and remedies given hereby, shall not be
exclusive of any other powers or remedies available to the Bank. No course of
dealings between the undersigned and the Bank and no delay on the part of the
Bank in exercising any rights with respect to any default shall operate as a
waiver of any rights of the Bank. Failure on the part of the Bank to exercise
any rights with respect to any default shall not operate as a waiver of any
rights with respect to any other default. The Borrower agrees to pay all
reasonable costs and expenses incurred by the holder hereof in enforcing this
Note, including without limitation, reasonable attorney's fees and legal
expenses.
Severability. If any provisions of this Note or the application of it to
any person or circumstance, shall be invalid or unenforceable, the remainder of
this Note or the application of those provisions to persons or circumstances
other than those as to which is held invalid or unenforceable, shall not be
affected and every other provision of this Note shall be valid and fully
enforceable.
Pledge. The Bank may at any time pledge all or any portion of this Note
to any of the twelve (12) Federal Reserve Banks organized under Section 4 of the
Federal Reserve Act, 12 U.S.C. Section 341.
Assignment. This Note, and all rights of the Bank hereunder, may be
assigned by the Bank, but this Note may not be assigned by the undersigned. The
purchaser, assignee, transferee, or pledgee of this Note shall be entitled to
all rights of the Bank hereunder as if said purchaser, assignee, transferee, or
pledgee were originally named in this Note.
Waiver of Trial by Jury. BORROWER AND BANK MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE,
OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH
OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT
FOR BANK TO ACCEPT THIS NOTE AND MAKE THE LOAN.
Governing Law. The terms of conditions of this Note shall be governed by
the laws of the State of New York.
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Borrower waives presentment, demand for payment, protest, and notice of
nonpayment with respect to this Note.
This Note may not be waived, changed, modified or discharged orally, but
only by agreement in writing signed by the party against whom any enforcement of
any waiver, change, modification or discharge is sought.
This Note restates and amends that $15,000,000.00 Restated Revolving
Promissory Note, dated April 29, 1998, from the Borrower to the Bank.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed as
of the day and year first above written.
DECORA, INCORPORATED
By:________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss:
COUNTY OF _______________ )
On February 18, 2000, before me personally came _________________, to me
known, who being by me duly sworn, did depose and say that he is the
_________________ of DECORA, INCORPORATED, the corporation described in the
foregoing instrument, and acknowledged that he executed the same by power of the
Board of Directors of such corporation.
_______________________________________
Notary Public
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