{"id":41228,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/promissory-note-windmere-durable-holdings-inc-and-salton-maxim.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"promissory-note-windmere-durable-holdings-inc-and-salton-maxim","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/promissory-note-windmere-durable-holdings-inc-and-salton-maxim.html","title":{"rendered":"Promissory Note &#8211; Windmere-Durable Holdings Inc. and Salton\/Maxim Housewares Inc."},"content":{"rendered":"<pre>\n                          THIS IS A SUBORDINATED NOTE\n                          AS FURTHER DESCRIBED HEREIN\n\n\n                                PROMISSORY NOTE\n\n                                                               Chicago, Illinois\n$10,847,620                                                        July 11, 1996\n\n\n\n         1.      Payment.  FOR VALUE RECEIVED, Windmere-Durable Holdings, Inc.\n('Windmere') on July 11, 2001 hereby promises to pay to the order of\nSalton\/Maxim Housewares, Inc. ('Seller') the principal sum of Ten Million Eight\nHundred Forty-Seven Thousand Six Hundred and Twenty Dollars ($10,847,620) and\nto pay interest at 8% per annum (calculated on the basis of a 365-day year and\nactual days elapsed) on the outstanding principal amount hereunder on the last\nday of each calendar quarter, commencing September 30, 1996.  Upon the\noccurrence and during the continuation of an Event of Default (as defined\nbelow), the principal amount then outstanding shall, without limiting the\nrights of Seller hereunder, bear interest at a rate per annum which is equal to\nthe lesser of (i) 5% over the rate which would otherwise be applicable thereto,\nand (ii) the highest amount permitted by law.  Both principal and interest are\npayable in lawful money of the United States of America and in immediately\navailable funds to Seller at 550 Business Center Drive, Mount Prospect,\nIllinois 60056.  The payment of the principal hereof and interest hereon on the\nscheduled dates therefor is subject to the subordination provisions set forth\nbelow.\n\n         2.      Other Documents.  This Promissory Note (the 'Note') is the\nNote referred to in Section 1.02(a)(ii) of that certain Stock Purchase\nAgreement, dated as of February 27, 1996, between Windmere and Seller (the\n'Purchase Agreement') and represents partial payment by Windmere for the shares\nof common stock of Seller issued to Windmere.\n\n                 As security for repayment of the indebtedness arising\nhereunder, Windmere and its Domestic Subsidiaries have executed and delivered\nto Seller those certain Security Agreements of even date herewith (the\n'Security Agreements').  In addition, all the Domestic Subsidiaries have\nguaranteed the obligations of Windmere to Seller pursuant to a Guaranty of even\ndate herewith (the 'Guaranty').\n\n         3.      Definitions.  Capitalized terms used in this Agreement without\ndefinition shall have the respective meanings accorded to them in that certain\namended and restated letter agreement, dated July 28, 1995 (the 'Senior\nCreditor Letter Agreement'), between Windmere and NationsBank of Florida,\nNational Association (the 'Senior Creditor'), without giving effect to any\namendments thereto.\n\n\n\n         4.      Events of Default.  Notwithstanding the maturity date set\nforth above, the maturity of this Note may be accelerated by Seller upon the\noccurrence of any of the following events ('Events of Default'):\n\n         (a)     Nonpayment of principal or interest hereunder when and as the\n                 same shall become due hereunder; or\n\n         (b)     Windmere or any Domestic Subsidiary fails to observe or\n                 perform any term, covenant or condition contained in the\n                 Security Agreements, and fails to remedy any such default\n                 within the period of grace, if any, provided therein; or\n\n         (c)     Any Domestic Subsidiary fails to observe or perform any term,\n                 covenant or condition contained in the Guaranty; or\n\n         (d)     Windmere enters into any merger, consolidation,\n                 reorganization, or liquidates, winds up, or dissolves itself\n                 (or suffers any liquidation or dissolution), or conveys,\n                 sells, assigns, leases, transfers, or otherwise disposes of,\n                 in one transaction or a series of transactions, substantially\n                 all of its business, property or assets, whether now owned or\n                 hereafter acquired, other than a merger of a Subsidiary into\n                 another Subsidiary or a merger in which Windmere is the\n                 surviving entity; or\n\n         (e)     Voluntary or involuntary bankruptcy, reorganization,\n                 insolvency, arrangement, receivership or similar proceedings\n                 are commenced by or against Windmere or any of its Domestic\n                 Subsidiaries, and such proceedings continue undismissed for 60\n                 days; or\n\n         (f)     One or more final judgments (for which no appeal may be taken)\n                 for the payment of money in excess of $1,000,000 in the\n                 aggregate are outstanding against Windmere or any of its\n                 Subsidiaries or against any property or assets of any of them,\n                 and any such judgment has remained unpaid, unvacated, unbonded\n                 or unstayed by appeal or otherwise for a period of 30 days\n                 from the date of its entry; or\n\n         (g)     Windmere shall incur, create, assume or permit to exist\n                 aggregate Indebtedness basis however evidenced, or guarantee,\n                 assume or endorse or otherwise become or remain liable in\n                 connection with any Contingent Obligation, other than\n                 Indebtedness evidenced by this Note, in excess of $50,000,000\n                 on a consolidated basis;\n\n         (h)     Windmere or any of its Subsidiaries fails to pay principal,\n                 interest or premium with respect to any Indebtedness of\n                 Windmere or any of its Subsidiaries in an aggregate principal\n                 amount greater than $500,000 or fails to perform, observe\n\n\n                                     -2-\n\n\n                 or fulfill any term or covenant contained in any agreement or\n                 instrument under or pursuant to which any such Indebtedness\n                 may have been issued, created, assumed, guaranteed or secured\n                 by Windmere or any of its Subsidiaries, and such default\n                 continues beyond the period of grace, if any, specified\n                 therein and permits the holder of such indebtedness to\n                 accelerate the maturity thereof. \n\n         (i)     The consolidated tangible net worth of Windmere and its\n                 Domestic Subsidiaries (excluding real property) determined in\n                 accordance with generally accepted accounting principles shall\n                 at any time be less than $40,000,000.\n\n         5.      Subordination.  Payments under this Note are subordinated to\nrepayment of all Senior Indebtedness (as defined in the next sentence), but\nonly to the extent and in the manner provided in this Section 5.  'Senior\nIndebtedness' shall mean all indebtedness owed by Windmere to the Senior\nCreditor pursuant to the Senior Creditor Letter Agreement, as such agreement\nmay be amended from time to time, or any indebtedness incurred by Windmere from\ntime to time in connection with any other credit facility with any financial\ninstitution or bank; provided that in no event shall the Senior Indebtedness\noutstanding at any time ever exceed $50,000,000.\n\n         (a)     Upon any payment or distribution of the assets of Windmere,\nwhether in cash, property or securities, from any source whatsoever, to\ncreditors upon any dissolution, winding-up, total or partial liquidation,\nreorganization, composition, arrangement, or adjustment of Windmere or its\nsecurities (whether voluntary or involuntary, or in bankruptcy, insolvency,\nreorganization, liquidation or receivership proceedings, or upon an assignment\nfor the benefit of creditors, or any other marshalling of the assets and\nliabilities of Windmere or otherwise), the Senior Creditor shall be entitled to\nreceive payment in full in cash of all amounts due or to become due in respect\nof the Senior Indebtedness before any payment is made on account of or applied\non this Note.\n\n         (b)     No payment under this Note shall be made during a Payment\nBlockage Period (as defined hereinafter); provided, however, that no more than\none Payment Blockage Period may exist during any 360 day period.  As used\nherein, a 'Payment Blockage Period' is the period commencing on the business\nday following the day Windmere receives from the Senior Creditor notice that an\n'Event of Default' (as defined in Senior Creditor Letter Agreement) has\noccurred and is continuing in respect of the Senior Indebtedness and\nterminating 180 days later.\n\n         (c)     Seller or any subsequent holder of this Note, by its\nacceptance of this Note, agrees that during any Payment Blockage Period, it\nwill not ask, demand, sue for, take or receive from Windmere, by set-off or in\nany other manner, any money which may now or hereafter be owing by Windmere\nunder this Note.\n\n         6.      Prepayment.  This Note may be prepaid at any time without\npenalty or premium.\n\n\n\n\n\n                                      -3-\n\n\n\n         7.      Assignment.  This Note may be assigned or pledged by Seller to\nany person or entity.  This Note may not be assigned by Windmere.\n\n         8.      Amendment; Waiver.  This Note may only be amended in\naccordance with the terms of the Stockholder Agreement between Windmere and\nSeller of even date hereof.  No failure or delay on the part of the holder of\nthis Note or to exercise any power or right under this Note shall operate as a\nwaiver of such power or right or preclude other or further exercise thereof or\nthe exercise of any other power or right.  No waiver of any condition or\nperformance will operate as a waiver of any subsequent condition or obligation.\nWindmere hereby waives diligence, presentment, demand for payment, notice of\ndishonor or acceleration, protest and notice of protest, and any and all other\nnotices or demands in connection with delivery, acceptance, performance,\ndefault or enforcement of this Note.\n\n         9.      Governing Law; Legal Fees.  This Note shall be governed by and\nconstrued in accordance with the laws of the State of Illinois, and Windmere\nagrees to pay the reasonable legal fees and disbursements of counsel in\nconnection with the enforcement of this Note.\n\n                                     WINDMERE-DURABLE HOLDINGS, INC.\n\n\n\n                                     By:      _________________________________\n\n                                              Title:___________________________\n\n                                     Address:\n\n                                     5980 Miami Lake Drive\n                                     Miami Lakes, Florida  33014-2467\n\n\n\n\n\n                                      -4-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6726,8750],"corporate_contracts_industries":[9393],"corporate_contracts_types":[9560,9567],"class_list":["post-41228","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-applica-inc","corporate_contracts_companies-salton-inc","corporate_contracts_industries-consumer__appliances","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41228","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41228"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41228"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41228"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41228"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}