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EXHIBIT 10.13
PROMISSORY NOTE
October 31, 2000
$2,750,000.00
FOR VALUE RECEIVED, the undersigned, CFI Holdings, Inc., a Connecticut
corporation ("Maker"), promises to pay to the order of John L. McSweeney, with
an address of 41 Monroe Turnpike, Trumbull, CT 06611 or his successors or
permitted assigns (collectively "Payee"), at Payee's said address or elsewhere
as Payee shall hereafter designate by notice to Maker, in lawful money of the
United States of America, the principal sum of Two Million Seven Hundred Fifty
Thousand Dollars ($2,750,000.00) (the "Principal Amount").
1. Repayment of the Principal Amount. Payment of the Principal Amount
shall be made in twenty equal quarterly installments of One Hundred Thirty Seven
Thousand Five Hundred Dollars ($137,500.00) or such lesser amount as is then
outstanding, on January 31, April 30, July 31 and October 31 in each year,
commencing on January 31, 2003. Any remaining Principal Amount shall be due and
payable on the seventh anniversary of this Note (the "Maturity Date").
2. Interest
(a) Interest Rates; Payment of Interest. The outstanding Principal
Amount shall accrue interest from the date of this Note at a rate equal to ten
percent (10%) per annum, compounded quarterly, until the Note is paid in full.
The interest is payable annually, in arrears, commencing on October 31, 2001 by
the issuance, on the relevant anniversary date, of promissory notes (each such
promissory note, a "PIK Note") by the Maker to the Payee, in each case with a
principal amount equal to the aggregate of (i) the amount of accrued and unpaid
interest on the Principal Amount and (ii) the amount of accrued and unpaid
interest on each PIK Note issued and outstanding, and otherwise on terms and
conditions identical to the terms and conditions of this Note, provided that
payment of the principal amount under (v) each PIK Note issued prior to November
1, 2002 shall be made in twenty equal quarterly installments commencing on
January 31, 2003, (w) the PIK Note issued on October 31, 2003 shall be made in
sixteen equal quarterly installments commencing on January 31, 2004, (x) the PIK
Note issued on October 31, 2004 shall be made in twelve equal quarterly
installments commencing on January 31, 2005, (y) the PIK Note issued on October
31, 2005 shall be made in eight equal quarterly installments commencing on
January 31, 2006, and (z) the PIK Note issued on October 31, 2006 shall be made
in four equal quarterly installments commencing on January 31, 2007. Any
remaining interest shall be payable in cash on the Maturity Date.
(b) Default Interest. After the occurrence of and during the
continuance of any Event of Default under Section 5 of this Note, the
outstanding principal amount of the Note and, to the extent permitted by
applicable law, all accrued and unpaid interest thereon and all other amounts,
fees, and obligations then due and payable to Payee under this Note, shall bear
interest at the rate of twelve percent (12%) per annum, and such interest shall
be payable on demand.
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(c) Saving Clause. Notwithstanding any other provision contained in
this Note, the aggregate interest rate per annum charged with respect to this
Note (including all charges and fees deemed to be interest pursuant to
applicable law) shall not exceed the maximum rate per annum permitted by
applicable law. In the event that the aggregate interest rate per annum payable
with respect to the loan (including all charges and fees deemed to be interest
under applicable laws) exceeds the maximum legal rate, (i) Maker shall only pay
Payee interest at the maximum permitted rate, (ii) Maker shall continue to make
such interest payments at the maximum permitted rate until all such interest
payments and other charges and fees payable hereunder (in the absence of such
legal limitations) have been paid in full, (iii) any interest in excess of the
maximum permitted rate received by Payee shall, at Payee's option, be applied to
a prepayment of principal of the Note or refunded to Maker, and (iv) neither
Maker nor any other party shall have any right of action against Payee for any
damages or penalty arising out of the payment or collection of any such excess
interest.
3. Prepayment. Maker shall have the right to prepay this Note at any
time and from time to time in whole or in part, without the payment of any
premium or penalty.
4. Cash Payments.
(a) Place and Manner of Cash Payments. All payments and prepayments in
cash to be made to Payee in respect of principal or interest on this Note and
other fees and charges under this Note shall become due at 1:00 p.m., New York
time, and shall be made to the account of Payee at any account designated by
Payee, or at any other payment office in the United States previously designated
by Payee to Maker in writing, on the day when due, in lawful money of the United
States of America, and in funds immediately available at such payment office.
Any funds not received by 1:00 p.m., New York time, shall be deemed to have been
paid by Maker on the next succeeding Business Day. Payee is hereby authorized to
endorse on the Note held by it an appropriate notation evidencing each scheduled
payment and each prepayment of principal and each payment of interest; provided
that the failure to make any such notation or any error with respect thereto
shall not limit, expand or otherwise affect the obligations of Maker under this
Note, and payments of principal and interest on this Note shall not be affected
by the failure to make any such notation.
(b) Application of Payments. Unless otherwise directed by Payee, cash
payments made by Maker shall be applied (i) first, to reimburse Payee for
expenses and fees incurred by Payee in connection with the collection of amounts
owed by Maker hereunder, including, without limitation, court costs, collection
costs and reasonable attorney fees, (ii) second, to interest accrued on the
principal balance of this Note, (iii) third, the balance, if any, to principal
due under this Note (x) in the case of a payment pursuant to Section 3, in
inverse order of maturity and (y) in any other case, in accordance with the
repayment schedule set forth in Section 1, and (iv) fourth, as required by law.
All payments hereunder shall be made without setoff, offset, deduction or
counterclaim, free and clear of all taxes, levies, imports, duties, fees, and
charges, and without any withholding, restriction or conditions imposed by any
governmental authority; provided, however, that the amount outstanding under
this Note shall be reduced by any amounts owed by Payee to GEEG Holdings, L.L.C.
pursuant to the terms of Article IX of the Acquisition Agreement, dated as of
October 31, 2000, by and among GEEG Holdings, L.L.C., Jack
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McSweeney, Truman Bassett and Maker. If Maker shall be required by any law to
deduct, setoff or withhold any amount from or in respect of any payment to Payee
under this Note, then the amount so payable to Payee shall be increased as may
be necessary so that, after making all such deductions, setoffs, and
withholdings, Payee shall receive an amount equal to the sum it would have
received had no such deductions, setoffs or withholding been made.
5. Events of Default. An event of default ("Event of Default") under
this Note shall occur if:
(a) Maker fails to pay any payment under this Note within ten (10) days
after the due date;
(b) A breach or default by Maker or Guarantor (as defined below) under
any loan agreement, mortgage, indenture or other agreement relating to
indebtedness in excess of ten million dollars ($10,000,000) if the effect of
such breach or default is to cause such indebtedness to be declared due and
payable prior to its stated maturity; or
(c) (i) Maker or Guarantor shall commence any case, proceeding or
action (x) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to its debts, or (y) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its assets, (ii) Maker or Guarantor shall make a general
assignment for the benefit of its creditors, (iii) there shall be commenced
against Maker or Guarantor any case, proceeding or other action of a nature
referred to in clause (i) above which shall not have been vacated or discharged
within sixty (60) days from the commencement thereof, or (iv) a court shall
enter a decree or order for relief in any involuntary case under Title 11 of the
United States Code, as amended from time to time, or any applicable bankruptcy
or similar law now or hereafter in effect, which decree or order is not stayed,
vacated, discharged, or bonded pending appeal within 60 days from the entry
thereof.
If any payment date falls on a weekend or national bank holiday, then payment
shall be due on the next business day.
6. Consequences of Event of Default.
In addition to the imposition of default interest as set forth in
Section 2(b), if an Event of Default specified in Section 5 shall occur and be
continuing, Payee may at his option, subject to Section 7, declare the unpaid
principal balance of this Note, all interest accrued thereon and all other
liabilities and obligations of Maker hereunder to be forthwith due and payable,
and the same shall, subject to Section 7, thereupon become and be immediately
due and payable without presentment, demand, protest or notice of any kind, all
of which are hereby expressly waived by Maker.
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7. Subordination Provisions.
(a) Each of the Maker and the Guarantor, for itself, its successors and
assigns, covenants and agrees, and the Payee (by its acceptance of the benefits
of this Note) covenants and agrees, that the payment of the principal of,
interest on, and all other amounts owing in respect of, this Note (the
"Subordinated Indebtedness") is hereby expressly subordinated, to the extent and
in the manner hereinafter set forth, to the prior payment in full in cash of all
Senior Indebtedness (as defined below). The provisions of this Section 7 shall
constitute a continuing offer to all who, in reliance upon such provisions,
become holders of, or continue to hold, Senior Indebtedness, and such provisions
are made for the benefit of the holders of Senior Indebtedness, and such holders
are hereby made obligees hereunder the same as if their names were written
herein as such, and they and/or each of them may proceed to enforce such
provisions. For purposes of this Note, "Senior Indebtedness" shall mean all
obligations of the Maker, the Guarantor and their respective subsidiaries under
(i) (A) the Credit Agreement, dated as of August 1, 2000, by and among Global
Energy Equipment Group, L.L.C., DLJ Capital Funding, Inc., Bankers Trust Company
and the other parties thereto (together with the documents related thereto
(including all notes, guaranty agreements and security documents), as amended,
restated, amended and restated, supplemented, refinanced, refunded, replaced or
otherwise modified from time to time (the "Senior Credit Agreement")) and (B)
interest rate swap agreements, interest rate cap agreements, interest rate
collar agreements, foreign exchange contracts, currency swap agreements and
other agreements or arrangements designed to protect the Maker, the Guarantor or
any of their respective subsidiaries against fluctuations in interest rates or
currency values, entered into with a person that was at such time a lender under
the Senior Credit Agreement (or an affiliate of any such lender) including, in
the case of clauses (A) and (B), interest accruing subsequent to the filing of,
or which would have accrued but for the filing of, a petition for insolvency or
bankruptcy, whether or not that interest is an allowable claim in that
insolvency or bankruptcy proceeding; (ii) the Senior Subordinated Loan Agreement
dated as of August 1, 2000, by and among Global Energy Equipment Group, L.L.C.
and the lenders parties thereto, as amended, restated, amended and restated,
supplemented, refinanced, refunded, replaced or otherwise modified from time to
time (including interest accruing subsequent to the filing of, or which would
have accrued but for the filing of, a petition for insolvency or bankruptcy,
whether or not that interest is an allowable claim in that insolvency or
bankruptcy proceeding) (it being acknowledged that the Senior Indebtedness
referred to in this clause (ii) is subordinated to the Senior Indebtedness
referred to in the preceding clause (i) pursuant to provisions set forth in such
Senior Subordinated Loan Agreement and that so long as any obligation in respect
of the Senior Indebtedness referred to in clause (i) of the definition thereof
is outstanding, payments hereunder to holders of Senior Indebtedness shall be
made to the Senior Agent (as defined below)), and (iii) any other indebtedness
of the Maker for borrowed money not expressly made junior to this Note. For
purposes of this Note, "Senior Agent" shall mean the administrative agent under
the Senior Credit Agreement.
(b) Upon the maturity of any Senior Indebtedness (including interest
thereon or fees or any other amounts owing in respect thereof), whether at
stated maturity, by acceleration or otherwise, all obligations owing in respect
thereof, in each case to the extent due and owing, shall first be paid in full
in cash, before any payment (whether in cash, property, securities or otherwise)
is made on account of the Subordinated Indebtedness.
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(c) Until all Senior Indebtedness has been paid in full in cash and all
commitments in respect of such Senior Indebtedness have been terminated, the sum
of all payments made in respect of the Subordinated Indebtedness (including
principal and interest) shall not exceed at any time that amount permitted by
the terms of the respective issue of Senior Indebtedness; provided, however,
that any Senior Indebtedness shall, subject to restrictions in the case of
default or event of default under such Senior Indebtedness, expressly permit the
payment of the Subordinated Indebtedness as and when provided for in this Note.
(d) Until all Senior Indebtedness has been paid in full in cash, none
of the Maker, the Guarantor or any of their respective subsidiaries may,
directly or indirectly, make any payment of any Subordinated Indebtedness and
may not acquire any Subordinated Indebtedness for cash or property if any
default in the payment of any monetary obligation or in the providing of any
security interest or guaranty under any Senior Indebtedness is then in existence
or would result therefrom or if any event of default under any Senior
Indebtedness is then in existence or would result therefrom (unless, in either
case, waived by the holders of such Senior Indebtedness). Payee hereby agrees
that, upon the occurrence of any default or event of default referred to in the
immediately preceding sentence or upon notice of any such default or event of
default under any Senior Indebtedness to the Guarantor, so long as any such
default or event of default in respect of any Senior Indebtedness exists, it
will not sue for, or otherwise take any action to enforce the Maker's or
Guarantor's obligations to pay, amounts owing in respect of this Note
(including, without limitation, the filing of any petition to commence any
bankruptcy, insolvency, liquidation or similar proceeding), other than any
action reasonably necessary to preserve the Payee's rights with respect to any
applicable statute of limitations and in any bankruptcy or other liquidation
proceeding of the Maker or the Guarantor, as the case may be. Payee understands
and agrees that to the extent that Sections 7(a) or 7(b) or this Section 7(d)
prohibits or reduces the payment of interest and/or principal which would
otherwise be payable under this Note, such unpaid amount shall not constitute a
payment default under this Note and Payee may not sue for, or otherwise take
action to enforce the Maker's or Guarantor's obligation to pay such amount,
provided that notwithstanding the other provisions of this sentence, such unpaid
principal or interest shall remain an obligation of the Maker (and Guarantor) to
Payee pursuant to the terms of this Note and shall bear interest at the rate set
forth in Section 2(b) until paid. Upon the cure of any default or event of
default which has prevented payment under this Note, the Maker shall pay to
Payee all unpaid principal and interest then due; provided, that such payment
would not cause a default or event of default under any Senior Indebtedness.
(e) In the event that, notwithstanding the provisions of preceding
Sections 7(a), 7(b), 7(c) and 7(d), the Maker or the Guarantor or any of their
respective subsidiaries shall make any payment on account of the Subordinated
Indebtedness at a time when such payment is not permitted by said Sections 7(a),
7(b), 7(c) or 7(d), such payment shall be held by Payee, in trust and for the
benefit of, and shall be paid forthwith over and delivered to, the holders of
Senior Indebtedness or their representative or the trustee under the indenture
or other agreement pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued for application pro rata to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in accordance with the terms of such Senior Indebtedness, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness; provided however, that, with respect to any such payment
received by the
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Payee, the Payee shall not be subject to the obligations set forth in this
Section 7(e) with respect to such payment after one hundred and eighty (180)
days have elapsed since Payee's receipt of such payment, so long as (i) the
relevant holder or holders of Senior Indebtedness had actual knowledge of the
default or event of default which should have prevented the making of such
payment and Payee during such one hundred and eighty (180) day period did not
have any knowledge of such default or event of default (or notice that such
default or event of default may have existed), (ii) such payment was a payment
required pursuant to the terms of this Note and such payment was not made prior
to the date required to be made pursuant to this Note and (iii) during such one
hundred and eighty (180) day period, the Senior Agent and each representative
for the holder or holders of such Senior Indebtedness (other than Senior
Indebtedness described in clause (i) of the definition thereof) who has provided
notice information to the Payee had proper and accurate notice information for
Payee. The Maker shall give Payee prompt written notice of any event which would
prevent payments under Sections 7(a), 7(b), 7(c) or 7(d); provided that failure
to give such notice (promptly or otherwise) shall in no way modify the
provisions of this Section 7 or affect the subordination effected hereby.
(f) Upon any distribution of assets of the Maker or the Guarantor upon
dissolution, winding up, liquidation or reorganization of the Maker or the
Guarantor, as the case may be, (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors or
otherwise):
(i) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full in cash of all Senior Indebtedness before Payee is
entitled to receive any payment of any kind or character on account of the
Subordinated Indebtedness;
(ii) any payment or distributions of assets of the Maker or the
Guarantor, as the case may be, of any kind or character, whether in cash,
property or securities to which Payee would be entitled except for the
provisions of this Section 7, shall be paid by the liquidating trustee or agent
or other entity or person making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or other trustee or agent,
directly to the holders of Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture under which
any instruments evidencing any such Senior Indebtedness may have been issued, to
the extent necessary to make payment in full in cash of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness; and
(iii) in the event that, notwithstanding the foregoing provisions of
this Section 7(f), any payment or distribution of assets of the Maker or the
Guarantor, as the case may be, of any kind or character, whether in cash,
property or securities, shall be received by Payee on account of Subordinated
Indebtedness before all Senior Indebtedness is paid in full in cash, such
payment or distribution shall be received and held in trust for and shall be
paid over to the holders of the Senior Indebtedness remaining unpaid or
unprovided for or their representative or representatives, or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, for application to the payment of such
Senior Indebtedness until all such Senior Indebtedness shall have been paid in
full in
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cash, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
The Maker shall give written notice to Payee of any dissolution,
winding up, liquidation or reorganization of the Maker (whether in bankruptcy,
insolvency or receivership proceedings or upon assignment for the benefit of
creditors or otherwise); provided that failure to give such notice (promptly or
otherwise) shall in no way modify the provisions of this Section 7 or affect the
subordination effected hereby.
(g) Subject to the prior payment in full in cash of all Senior
Indebtedness, Payee shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets of the Maker or the
Guarantor, as the case may be, applicable to the Senior Indebtedness until all
amounts owing on this Note shall be paid in full, and for the purpose of such
subrogation no payments or distributions to the holders of the Senior
Indebtedness by or on behalf of the Maker or the Guarantor, as the case may be,
or by or on behalf of Payee by virtue of this Section 7 which otherwise would
have been made to Payee shall, as between the Maker, or the Guarantor, as the
case may be, its creditors other than the holders of Senior Indebtedness, and
Payee, be deemed to be payment by the Maker or the Guarantor, as the case may
be, to or on account of the Senior Indebtedness, it being understood that the
provisions of this Section 7 are and are intended solely for the purpose of
defining the relative rights of Payee, on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
(h) Nothing contained in this Section 7 or in this Note is intended to
or shall impair, as between the Maker and Payee, the obligation of the Maker,
which is absolute and unconditional, to pay to Payee the principal of and
interest on this Note as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of Payee and creditors of the Maker and the Guarantor other than the
holders of the Senior Indebtedness, nor shall anything herein or therein prevent
Payee from exercising all remedies otherwise permitted by applicable law upon an
event of default under this Note, subject to the provisions of this Section 7
and the rights, if any, under this Section 7 of the holders of Senior
Indebtedness in respect of cash, property, or securities of the Maker and/or the
Guarantor received upon the exercise of any such remedy. Upon any distribution
of assets of the Maker and/or the Guarantor referred to in this Section 7, Payee
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other entity or person making any distribution to Payee, for
the purpose of ascertaining the entity or person entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Maker and/or the Guarantor (including the Subordinated Indebtedness), the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Section 7.
(i) No right of any present or future holders of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Maker, the Guarantor or Payee or by any act or failure to act in good faith
by any such holder, or by any noncompliance by the Maker, the Guarantor or Payee
with the terms and provisions of this Note, regardless of any knowledge thereof
which any such
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holder may have or be otherwise charged with. The holders of the Senior
Indebtedness may, without in any way affecting the obligations of Payee with
respect hereto, at any time or from time to time and in their absolute
discretion, change the manner, place or terms of payment of, change or extend
the time of payment of, or renew or alter, any Senior Indebtedness or amend,
modify or supplement any agreement or instrument governing or evidencing such
Senior Indebtedness or any other document referred to therein (including,
without limitation, adding or deleting borrowers or guarantors thereunder and
increasing the amount of indebtedness incurred thereunder or available to be
borrowed thereunder), or exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without limitation, the waiver
of default thereunder and the release of any collateral securing such Senior
Indebtedness all without notice to or assent from Payee.
(j) Payee agrees that if it does not file a proper proof of claim or
proof of debt in the form required in any proceeding referred to in Section 5(c)
at least thirty (30) days prior to the expiration of the time to file such
claim, the Senior Agent or the lenders under the Senior Credit Agreement is or
are hereby authorized to file an appropriate claim for and on behalf of Payee.
(k) To the extent any payment of Senior Indebtedness (whether by or on
behalf of the Maker or the Guarantor, whether as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar person or entity under
any bankruptcy, insolvency receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar person or entity, the
Senior Indebtedness or part thereof originally intended to be satisfied shall be
deemed to be reinstated and outstanding as if such payment had not occurred.
(l) The holders of Senior Indebtedness are hereby authorized to demand
specific performance of the subordination provisions contained herein, whether
or not the Maker or the Guarantor shall have complied with any of the provisions
of this Note applicable to it, at any time when Payee shall have failed to
comply with any of the subordination provisions of this Note. Payee irrevocably
waives any defense based on the adequacy of a remedy at law which might be
asserted as a bar to such remedy of specific performance and any requirement for
the securing or posting of any bond in connection with such remedy.
(m) The subordination provisions contained herein may not be amended or
modified without the written consent of the "Required Lenders", as such term is
defined in the Senior Credit Agreement.
8. General Provisions.
(a) This Note is not assignable without the prior written consent of
the Maker. This Note shall inure to the benefit of Payee.
(b) If this Note is referred to any attorney for collection, Maker
promises to pay to Payee court costs, collection costs and reasonable attorneys
fees incurred by Payee.
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(c) Failure of Payee to exercise any of his rights shall not constitute
a waiver of the right to exercise them at any time.
(d) All questions concerning the construction validity and
interpretation of this Note shall be governed by and construed in accordance
with the domestic laws of the State of New York without giving effect to any
choice of law or conflict of law provision (whether of the State of New York or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
9. Guaranty.
(a) GEEG Holdings L.L.C. (the Guarantor") hereby unconditionally
guarantees to Payee the full and prompt payment when due, of each and every
liability and obligation of every type and description that Maker, or any
successor thereto, now or at any time hereafter owes to Payee under this Note.
(b) No act or thing need occur to establish the liability of Guarantor
under this guaranty, and no act or thing, except full payment and discharge of
this Note, shall in any way exonerate Guarantor or modify, reduce, limit or
release the liability of Guarantor under this Note. The obligations of Guarantor
under this Note shall be absolute, unconditional, and irrevocable, and shall not
be subject to any right of set off or counterclaim by Guarantor (other than
pursuant to the terms of the Acquisition Agreement) and shall be paid or
performed strictly in accordance with the terms of this Note, subject to Section
7 hereof.
(c) Guarantor shall be liable for all indebtedness evidenced by this
Note, plus accrued interest thereon and all attorneys fees, collection costs and
enforcement expenses related thereto. Indebtedness evidenced by this Note may be
continued in any amount without affecting or impairing the liability of
Guarantor under this guaranty. No notice of any renewal or extension of this
Note need be given to Guarantor and no extension, renewal or continuation
thereof shall release the Guarantor from liability under this guaranty. This
guaranty is an absolute, unconditional and continuing guaranty of payment of
this Note and shall continue to be in force and be binding upon Guarantor until
this Note is paid in full. Guarantor hereby waives, to the fullest extent
permitted by law, any right it may have to revoke or terminate this guaranty
before this Note is paid in full. In the event Guarantor shall have any right
under applicable law to otherwise terminate or revoke this guaranty which cannot
be waived, such termination or revocation shall not be effective until written
notice of such termination or revocation, signed by Guarantor, is actually
received by Payee.
(d) The liability of Guarantor under this guaranty shall not be
affected or impaired by any of the following acts or things (which Payee is
expressly authorized to do, omit or suffer from time to time, without notice to
or approval by Guarantor): (i) any acceptance of collateral security, other
guarantors, accommodation parties or sureties for this Note; (ii) any one or
more extensions or renewals of this Note (whether or not for longer than the
original period) or any modification of the interest rate, maturity or other
contractual terms applicable to this Note; (iii) any waiver or indulgence
granted to Maker, any delay or lack of diligence in the enforcement of this
Note, or any failure to institute proceedings, file a claim, give any required
notices or otherwise protect this Note; (iv) any full or partial release of,
settlement with, or
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agreement not to sue, Maker or any other guarantor or other person liable in
respect of this Note; (v) the acceptance of any instrument in renewal of this
Note or substitution therefor; (vi) any failure to obtain collateral security
for this Note, or to see to the proper or sufficient creation and perfection
thereof, or to establish the priority thereof, or to protect, ensure, or enforce
any collateral security, or any modification, substitution, discharge,
impairment or loss of any collateral security; (vii) any foreclosure or
enforcement of any collateral security; (viii) any transfer of this Note or any
evidence thereof; (ix) any order of application of any payments or credits upon
this Note; (x) any release of any collateral security for this Note; (xi) any
amendment to or modification of, any agreement between Payee and maker or any
waiver of compliance by Maker with the terms thereof; and (xii) any election by
Payee under Section 1111(b) of the United States Bankruptcy Code.
(e) The obligations of the Guarantor hereunder are independent of the
obligations the Maker, and a separate action or separate actions may be brought
and prosecuted against the Guarantor whether or not action is or has been
brought against the Maker and whether or not the Maker is or has been joined in
any such action or actions.
10. Notices.
All notices and other communications under this Note shall be in
writing and shall be deemed given when (i) delivered by hand, (ii) transmitted
by telecopier, provided that a copy is sent at about the same time by registered
mail, return receipt requested and, provided further, that a transmission made
on a day which is not a business day or after 3:00 pm on a business day shall be
deemed given on the following business day, (iii) one business day after mailed,
to the addressee, if sent by Express Mail, Fed Ex, or other overnight delivery
service, or (iv) three business days after mailed, to the addressee, by regular
mail delivery of the U.S. Postal Service, to the addressee at the following
addresses or telecopier numbers (or to such other address or telecopier number
as a party may specify by notice given to the other party pursuant to this
provision):
if to the Maker, to:
c/o GEEG Holdings, L.L.C.
6120 South Yale
Suite 1480
Tulsa, OK 74136
Fax: (918) 488-8389
Attention: Larry Edwards
with a copy to:
Harvest Partners, Inc.
280 Park Avenue
33rd Floor
New York, NY 10017
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Fax: (212) 812-0100
Attention: Stephen Eisenstein
and
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Fax: (212) 354-8113
Attention: Oliver C. Brahmst, Esq.
if to John L. McSweeney, to:
John L. McSweeney
41 Monroe Turnpike
Trumbull, CT 06611
with a copy to:
Bingham Dana LLP
One State Street
Hartford, CT 06103
Fax: (860) 240-2800
Attention: F. Mark Fucci, Esq.]
if to the Senior Agent to:
Bankers Trust Company
130 Liberty Street
14th Floor
New York, NY 10006
Fax: (212) 250-7351
Attention: Christina Tang
with a copy to:
Deutsche Banc Alex.Brown
233 South Whacker Drive
Chicago, Illinois 60606
Fax: (312) 993-8150
Attention: Linda Stahulak
or to such other person or address as shall be designated in writing by the
Maker, the Payee or the Senior Agent, as the case may be, in accordance with the
notice provisions hereunder.
* * * * *
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IN WITNESS WHEREOF, the Maker has executed and delivered this Note as
of the date first written above.
CFI HOLDINGS, INC.
By: /s/ Larry Edwards
_______________________________
Name:
Title:
GEEG HOLDINGS L.L.C. (For purposes of Section 9 only)
By: /s/ Larry Edwards
________________________________
Name:
Title:
Accepted and agreed to this 31st
day of October 2000
/s/ John L. McSweeney
___________________________________
John L. McSweeney
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