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Exhibit 10.44
EXECUTION COPY
THIS INSTRUMENT IS SUBJECT TO A SUBORDINATED CREDIT AGREEMENT, DATED
AS OF NOVEMBER 5, 1999, WHICH, AMONG OTHER THINGS, SUBORDINATES THE
MAKER'S OBLIGATIONS TO THE PAYEE TO THE MAKER'S OBLIGATIONS TO THE
HOLDERS OF SENIOR DEBT AS DEFINED IN SAID AGREEMENT.
SUBORDINATED NOTE
$10,000,000.00 New York, New York
November 5, 1999
FOR VALUE RECEIVED, the undersigned, SLEEPMASTER HOLDINGS L.L.C., a New
Jersey limited liability company (the "Maker"), hereby promises to pay to
CITICORP MEZZANINE PARTNERS, L.P. or its registered assigns (the "Payee"), at
399 Park Avenue, 14th Floor, New York, New York 10043, on the Maturity Date (as
defined in the Subordinated Credit Agreement, dated as of November 5, 1999, as
the same may be amended, modified, restated or supplemented from time to time
(the "Credit Agreement")), among the Maker and the Payee, the principal sum of
TEN MILLION DOLLARS ($10,000,000.00) or such lesser principal amount thereof as
may remain outstanding in lawful money of the United States of America in
immediately available funds, and to pay interest from the date hereof on the
principal amount hereof from time to time outstanding, in like funds, at said
office, at a rate or rates per annum and payable on such dates as determined
pursuant to the terms of the Credit Agreement.
The Maker promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates determined as set forth in the Credit Agreement.
The Maker hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever, other than as expressly required by the Credit
Agreement. The nonexercise by the holder of any of its rights hereunder in any
particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
The date, amount and interest rate applicable to all borrowings evidenced
by this Note and all payments and prepayments of the principal hereof and
interest hereon shall be noted by the holder hereof on the schedule attached
hereto or any continuation thereof; provided, that the failure of the holder
hereof to make such a notation or any error in such a notation shall not in any
manner affect the obligation of the Maker to make payments of principal and
interest in accordance with the terms of this Note and the Credit Agreement.
This Note is the Note referred to in the Credit Agreement, which, among
other things, contains provisions for the acceleration of the maturity hereof
upon the happening of certain events (subject however to the terms of Article 8
of the Credit Agreement referred to above), for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and prepayment
premiums thereon and for the amendment or waiver of certain provisions of the
Credit Agreement,
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all upon the terms and conditions therein specified. THIS NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS.
SLEEPMASTER HOLDINGS L.L.C.
By:
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Name:
Title:
Attest:
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Name:
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LOANS AND PAYMENTS
PAYMENTS OF
PRINCIPAL AMOUNT PRINCIPAL OR UNPAID PRINCIPAL NAME OF PERSON
DATE OF LOAN INTEREST RATE INTEREST BALANCE ON NOTE MAKING NOTATION
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11/05/99 $10,000,000.00 14.00%
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