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S&H NOTE
$3,000,000 July 27, 1998
FOR VALUE RECEIVED, the undersigned SMITH & HAWKEN, LTD., a Delaware
corporation (the "COMPANY"), hereby promises to pay to the order of BANKBOSTON,
N.A., a national banking association (the "LENDER") at the Administrative
Agent's Head Office (as defined in the Credit Agreement, as hereinafter
defined):
(a) prior to or on the Maturity Date the principal amount of THREE
MILLION DOLLARS ($3,000,000) or, if less, the aggregate unpaid principal
amount of the S&H Loans advanced by the Lender to the Company pursuant to
the Revolving Credit Agreement dated as of April 17, 1996, and restated as
of July 27, 1998 (as amended, supplemented, modified or restated and in
effect from time to time, the "CREDIT AGREEMENT"), among (a) CML Group,
Inc., (b) the Company and certain other Borrowers party thereto, (c) the
Lender and the other lending institutions as may become parties to the
Credit Agreement from time to time, and (d) BankBoston, N.A. (f/k/a The
First National Bank of Boston), as administrative, collateral, and
documentation agent for the Lenders;
(b) the principal outstanding hereunder from time to time at the times
provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time
outstanding until such principal amount is paid in full, at the times and
at the rates provided in the Credit Agreement.
This Note (this "NOTE") evidences borrowings under and has been issued by
the Company in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement, the
Security Documents and the other Loan Documents, and may enforce the agreements
of the Company contained therein, and any holder hereof may exercise the
respective remedies provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms thereof. All capitalized
terms used in this Note and not otherwise defined herein that
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are defined in the Credit Agreement shall have the same meanings herein as in
the Credit Agreement.
The Company irrevocably authorizes the Lender to make or cause to be made,
at or about the time of the Drawdown Date of any S&H Loan or at the time of
receipt of any payment of principal of this Note, an appropriate notation on the
grid attached to this Note, or the continuation of such grid, or any other
similar record, including computer records, reflecting the making of such S&H
Loan or (as the case may be) the receipt of such payment. The outstanding amount
of the S&H Loans set forth on the grid attached to this Note, or the
continuation of such grid, or any other similar record, including computer
records, maintained by the Lender with respect to any S&H Loans shall be PRIMA
FACIE evidence of the principal amount thereof owing and unpaid to the Lender,
but the failure to record, or any error in so recording, any such amount on any
such grid, continuation or other record shall not limit or otherwise affect the
obligation of the Company hereunder or under the Credit Agreement to make
payments of principal of and interest on this Note when due.
The Company has the right in certain circumstances and the obligation under
certain other circumstances to prepay the whole or part of the principal of this
Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon may
become or be declared due and payable in the manner and with the effect provided
in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Company and every endorser and guarantor of this Note or the obligation
represented hereby waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note, and assents to any extension or
postponement of the
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time of payment or any other indulgence, to any substitution, exchange or
release of collateral and to the addition or release of any other party or
person primarily or secondarily liable.
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THIS NOTE AND THE OBLIGATIONS OF THE COMPANY HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE COMPANY AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF
SUCH COURT AND THE COMPANY HEREBY EXPRESSLY APPOINTS CML AT THE ADDRESS
SPECIFIED IN ss.21 OF THE CREDIT AGREEMENT AS ITS AGENT FOR SERVICE OF PROCESS
IN ANY SUCH SUIT.
This Note may not be assigned to any Person or party except as permitted
under ss.20 of the Credit Agreement.
This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the undersigned has caused this S&H Note to be signed
in its corporate name and its corporate seal to be impressed thereon by its duly
authorized officer as of the day and year first above written.
SMITH & HAWKEN, LTD.
[Corporate Seal]
By: ________________________________
Title:
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