EXHIBIT 10.1
SECOND AMENDMENT AND RESTATEMENT OF PROMISSORY NOTE
This Second Amendment and Restatement of Promissory Note is executed at
Youngstown, Ohio, on May_17_, 2000 by and between ATLANTIS PLASTICS INJECTION
MOLDING, INC., a Kentucky corporation, and ATLANTIS PLASTICS, INC., a Florida
corporation (collectively, the "Borrower") and NATIONAL CITY BANK (the "Bank").
PRELIMINARY STATEMENTS
1. Bank extended a loan to the Borrower in the amount of Five Hundred
Seventy-eight Thousand and No/100ths Dollars ($578,000.00) as evidenced by a
promissory note dated May 17, 1995 as amended by an Amendment and Restatement of
Promissory Note dated January 30, 1997 (the "Note").
2. The Note has an outstanding principal balance of Three Hundred
Eighty Eight Thousand Five Hundred Fifty-One and No/100ths Dollars
($388,551.00).
3. The Bank and the Borrower desire to modify the Note and to restate
the terms, conditions, and provisions thereof to reflect such modification.
4. Borrower and Bank ratify and confirm all of the terms and conditions
of the Note not specifically amended herein and all of those terms and
conditions of all other documents between Borrower and Bank pertaining to the
indebtedness evidenced by the Note, including, without limitation, the Open End
Mortgage and Security Agreement given by Borrower dated May 17, 1995 for the
purpose of securing the Note, as recorded in Official Record 933, Page 40 of
Trumbull County, Ohio Records (the "Mortgage").
5. Borrower does not have any claim, offset, or defense against the
Bank.
AGREEMENT
For valuable considerations as hereinafter granted each to the other
and intending to be legally bound, the parties acknowledge the preliminary
statements and amend and restate the terms, conditions, and provisions of the
Note as follows:
FOR VALUE RECEIVED, ATLANTIS PLASTICS INJECTION MOLDING, INC., a Kentucky
corporation whose address is Xxxxxxx 00, Xxxx, X.X. Xxx 0, Xxxxxxxxx, Xxxxxxxx
00000 and ATLANTIS PLASTICS, INC., a Florida corporation whose address is 0000
Xxx Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (collectively, the "Borrower")
promise to pay to the order of NATIONAL CITY BANK (the "Bank"), a national
banking association having its main office at Xxx Xxxxxxx Xxxxx, Xxxxx, Xxxx
00000, at Bank's main office (or at such other place as Bank may from time to
time designate by written notice) in lawful money of the United States of
America, the principal sum of
THREE HUNDRED EIGHTY EIGHT THOUSANDFIVE HUNDRED FIFTY-ONE
AND NO/1OOTHS DOLLARS
together with interest, all as provided below.
1. Interest. The Principal Balance shall at all times bear interest at a rate
equal to the Contract Rate, provided that so long as any principal of or accrued
interest on any this Note overdue, the Principal Balance and all overdue
interest thereon shall bear interest at a fluctuating rate equal to two percent
(2%) per annum above the rate that would otherwise be applicable, but in no case
less than two percent (2%) per annum above the Prime Rate; provided further that
in no event shall any principal of or interest on this Note bear interest at any
time after Maturity at a lesser rate than the rate applicable thereto
immediately after Maturity. The "Contract Rate" shall at all times be a
fluctuating rate equal to the Prime Rate, provided that Borrower shall have the
right from time to time to irrevocably elect a fixed rate (the "LIBOR Margin
Rate") equal to the sum of one and three quarters percent (1-3/4%) per annum
plus LIBOR as the Contract Rate applicable to the Principal Balance during a
Contract Period by specifying the term of the Contract Period and the Principal
Balance that such Borrower expects to have outstanding on the first day thereof
(giving effect to any payments to be made on or before that day) in a notice
given to Bank orally or in writing not later than 10:00 a. m., Main-Office Time,
of the third (3rd) Eurodollar Banking Day preceding the first day of that
Contract Period, and stating that such Borrower is electing the LIBOR Margin
Rate.
Interest on this Note shall be payable monthly commencing on June 20, 2000 and
continuing on the twentieth day of each month until Maturity, and on demand
thereafter. At the end of each Contract Period during which the LIBOR Margin
Rate is the Contract Rate, the Principal Balance shall bear interest at the
Prime Rate unless either Borrower shall have elected otherwise as hereinbefore
provided. Bank shall be entitled to fund and maintain its funding of all or any
part of the Principal Balance in any manner Bank may from time to time deem
advisable, Borrower acknowledging that all determinations relating to the LIBOR
Margin Rate shall be made as if Bank had actually funded and maintained the
Principal Balance by the purchase of deposits in an amount similar to the amount
of the Principal Balance, with a maturity similar to the Contract Period during
which the LIBOR Margin Rate was elected, and bearing interest at LIBOR.
2. Ineffective Elections. Notwithstanding any provision or inference to the
contrary, Bank shall have the right in its discretion, without notice to
Borrower, to deem ineffective any election of a Contract Rate if (a) at the time
of that election or on the first day of the Contract Period specified in the
notice thereof, there shall exist or there would occur any Event of Default, (b)
any representation, warranty, or other statement made by any Person (other than
Bank) in any Related Writing (other than any financial statement) would, if made
either at the time of that election or on the first day of the Contract Period
specified in the notice thereof, be untrue or incomplete in any respect, (c)
after giving effect to that election, more than one Contract Rate would be
applicable to the Principal Balance, (d) Bank shall determine that (i) dollar
deposits of the appropriate amount and maturity are not available in the market
selected by Bank for the purpose of funding the Principal Balance at LIBOR, (ii)
circumstances affecting that market make it impracticable for Bank to ascertain
LIBOR, or (iii) any governmental authority has
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asserted that it is unlawful for Bank to fund, make, or maintain loans bearing
interest based on LIBOR, (e) after giving effect to that election, the actual
Principal Balance is or would be, on the first day of the Contract Period
specified in the notice of that election, different than the expected Principal
Balance specified in that notice, (f) any principal payment is scheduled to
become due during the Contract Period specified in the notice of that election,
(g) the expected Principal Balance specified in the notice of that election is
less than Fifty Thousand and No/100ths Dollars ($50,000.00), or (h) the Contract
Period specified in the notice of that election would end after the scheduled
due date of the last principal payment under this Note, giving effect to any
prepayments. Bank's books and records shall be conclusive (absent manifest
error) as to whether Bank shall have deemed any such election ineffective.
3. Premium. Ineffective and Unlawful Elections. If Bank shall deem ineffective
any election of any Contract Rate, Borrower shall pay to Bank, on Bank's demand,
a premium based on the amount the expected Principal Balance specified in the
notice of that election and computed for the Contract Period specified in that
notice at a rate per annum equal to the excess, if any, of the Contract Rate so
elected over the Reinvestment Rate. If any governmental authority shall assert
that it is unlawful for Bank to fund, make or maintain loans bearing interest
based on LIBOR, then, and in each such case, notwithstanding any provision or
inference to the contrary, the Principal Balance shall thereupon bear interest
at the Prime Margin Rate, and Borrower shall pay to Bank, on Bank's demand, (a)
all unpaid interest theretofore accruing at the LIBOR Margin Rate and (b) a
premium based on the amount of the principal theretofore bearing interest at the
LIBOR Margin Rate and computed for the remainder of the Contract Period
therefor, at a rate equal to the excess, if any, of the Contract Rate
theretofore applicable over the Reinvestment Rate.
4. Repayment. Subject to section 7, the principal of this Note shall be due and
payable in sixty (60) instalments, commencing on June 20, 2000, and continuing
on the twentieth day of each month thereafter until paid in full, each such
instalment except the final instalment to be in a principal amount equal to
Three Thousand Two Hundred Thirty-Eight and No/100ths Dollars ($3,238.00), and
the final instalment to be an amount equal to all unpaid principal of this Note.
Borrower shall have the right to prepay the principal of this Note in whole or
in part at any time before maturity, provided that if any payment (whether a
prepayment or a payment following any acceleration of the due date thereof) is
made before the last day of a Contract Period during which the LIBOR Margin Rate
is the Contract Rate applicable to the Principal Balance, then, and in each such
case, Borrower shall, concurrently with the payment, pay to Bank (i) the
interest on the principal being paid and (ii) a premium based on the principal
amount paid and computed for the period from the date of payment to the last day
of the Contract Period in question at a rate per annum equal to the excess, if
any, of the Contract Rate theretofore applicable over the Reinvestment Rate.
5. Collateral. This Note is secured by a mortgage dated May 17, 1995 on property
located in the Township of Xxxxxxx, Xxxxxxxx County Ohio. Reference is made
thereto for rights as to acceleration or default of this Note.
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6. Definitions. As used in this Note, except where the context clearly requires
otherwise, "Banking Day" means any day (other than any Saturday, Sunday or legal
holiday) on which Bank's main office is open to the public for carrying on
substantially all of its banking functions; "Contract Period" means a period
selected by a Borrower, provided that each Contract Period shall commence on a
Eurodollar Banking Day and end one (1) month, three months (3), or six (6)
months thereafter, provided that (a) if any such Contract Period otherwise would
end on a day that is not a Eurodollar Banking Day, it shall end instead on the
next following Eurodollar Banking Day unless that day falls in another calendar
month, in which latter case the Contract Period shall end instead on the next
preceding Eurodollar Banking Day and (b) if any such Contract Period commences
on a day for which there is no numerical equivalent in the calendar month in
which that Contract Period is to end, it shall end on the last Eurodollar
Banking Day of that calendar month; "Eurodollar Banking Day" means any Banking
Day on which banks in the London Interbank Market deal in United States dollar
deposits and on which banking institutions are generally open for domestic and
international business at the place where Bank's main office is located and in
New York City; "LIBOR" means, with respect to a given Contract Period, the rate
per annum (rounded upwards, if necessary, to the next higher 1/16 of 1%)
determined by Bank to equal the average rate per annum at which deposits
(denominated in United States dollars) in an amount similar to the then
Principal Balance and with a maturity similar to that Contract Period are
offered to Bank at 11:00 A.M. London time (or as soon thereafter as practicable)
two (2) Eurodollar Banking Days prior to the first day of that Contract Period
by banking institutions in any Eurodollar market selected by Bank; "Note" means
this promissory note (including, without limitation, each addendum, allonge, or
amendment, if any, hereto); "Obligor" means any Person who, or any of whose
property, shall at the time in question be obligated in respect of all or any
part of the Indebtedness evidenced by this Note of Borrower and in addition to
Borrower, includes, without limitation, co-makers, endorsers, guarantors,
pledgors, hypothecators, mortgagors, and any other Person who agrees,
conditionally or otherwise, to make any loan to, purchase from, or investment
in, any other Obligor or otherwise assure such other Obligor's creditors or any
of them against loss; "Person" means an individual or entity of any kind,
including, without limitation, any association, company, cooperative,
corporation, partnership, trust, governmental body, or any other form or kind of
entity; "Prime Rate" means the fluctuating rate per annum which is publicly
announced from time to time by Bank at its main office as being its so-called
"prime rate" or "base rate" thereafter in effect, with each change in the Prime
Rate automatically, immediately, and without notice changing the Prime Rate
thereafter applicable hereunder, it being acknowledged that the Prime Rate is
not necessarily the lowest rate of interest then available from Bank on
fluctuating-rate loans; "Principal Balance" means, at a given time, the entire
unpaid principal balance of the this Note; "Reinvestment Rate" means, when used
with respect to any period, a per annum rate of interest equal to the "bond
equivalent yield" for the most actively traded issues of U. S. Treasury Bills,
U. S. Treasury Notes, or U. S. Treasury Bonds for a term similar to the period
in question; "Related Writing" means this Note and any indenture, note,
guaranty, assignment, mortgage, security agreement, subordination agreement,
notice, financial statement, legal opinion, certificate, or other writing of any
kind pursuant to which all or any part of the Indebtedness evidenced by this
Note of Borrower is issued, which evidences or secures all or any part of the
Indebtedness evidenced by this Note of Borrower, which governs the relative
rights and priorities of Bank and one or more other Persons to payments made by,
or the property of, any Obligor, which is delivered to Bank pursuant to another
such writing, or which is otherwise delivered to Bank by or on behalf of any
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Person (or any employee, officer, auditor, counsel, or agent of any Person) in
respect of or in connection with all or any part of the Indebtedness evidenced
by this Note of Borrower or either of them; and the foregoing definitions shall
be applicable to the respective plurals of the foregoing defined terms.
7. Events of Default. It shall be an "Event of Default" if (a) there is a
failure of the Borrower to make any payment within ten (10) days of when due
hereunder; (b) there is an occurrence of a default or Event of Default under, or
as defined in, the Mortgage or any other instrument given as security for this
note; (c ) there occurs a default or "Event of Default" as defined in the
promissory note given by Borrower to Bank dated May 17, 1995 in the amount of
$1,739,000.00; (d); Atlantis Plastics, Inc.'s will not, during any fiscal year
(commencing with the present fiscal year), suffer or permit the ratio of 1) the
aggregate of its net income for that year plus interest expense for that year
plus its federal, state and local income taxes for that year plus depreciation
expense for that year plus amortization expense for that year (EBITDA) to 2) its
net interest expense (excluding amortization of loan fees) for that year to be
less than 2.0:1 or (e) there is a filing by, or against, Borrower of any
complaint or action for relief under any bankruptcy or insolvency laws, or for
the appointment of a receiver, which is not dismissed within sixty (60) days of
filing.
8. Effects of Default. If any Event of Default occurs, Bank may, at its option,
accelerate the maturity of this note. If Bank chooses to accelerate, the entire
unpaid principal amount, together with interest at the default rate set forth
above, shall be immediately due and payable, without demand or notice, both of
which are expressly waived by Borrower.
9. Late Charges. In each case in which any principal of or interest on this Note
is not paid within ten (10) days after its due date, Bank shall have the right
to assess a late charge, payable by Borrower on demand, equal to the greater of
twenty dollars ($20.00) or five percent (5%) of the unpaid amount. The payment
of a late charge will not cure or constitute a waiver of any default under this
Note.
10. Indemnity: Administration and Enforcement. Borrower will pay to Bank all
costs and expenses of collection of this Note, including, without limitation,
attorneys' fees. If any amount (other than the principal of any Subject Loan and
any interest and late charges) owing under this Note is not paid when due, then,
and in each such case, Borrower shall pay, on Bank's demand, interest on that
amount from the due date thereof until paid in full at a fluctuating rate equal
to four percent (4%) per annum plus the Prime Rate.
11. Indemnity: Governmental Costs. If (a) there shall be enacted any law
(including, without limitation, any change in any law or in its interpretation
or administration and any request by any governmental authority) relating to any
interest rate or any reserve or special deposit requirements against assets held
by, deposits in, or loans by Bank or to any tax (other than any tax on Bank's
overall net income) and (b) in Bank's sole opinion any such event increases the
cost of funding or maintaining any LIBOR Rate Unit or reduces the amount of any
payment to be made to Bank in respect thereof, then, and in each such case, upon
Bank's demand, Borrower shall pay Bank an amount equal to each such cost
increase or reduced payment, as the case may
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be. In determining any such amount, Bank may use reasonable averaging and
attribution methods. Each determination by Bank shall be conclusive absent
manifest error.
12. Application of Payments. Payments other than prepayments will be applied
first to instalments in the order of their respective due dates; provided,
however, that if a payment so applied would pay the principal amount of the note
in full, but would leave late charges outstanding, the payment will instead be
applied to late charges prior to being applied to the principal amount of the
final instalment.
13. Other Provisions. All fees, interest, and premiums for any given period
shall be computed on the basis of a 360-day year and the actual number of days
in the period. Any term used in this Note shall have the meaning ascribed
thereto by the Uniform Commercial Code as in effect on the date hereof in the
jurisdiction in which Bank's main office is located, subject, however, to such
modification, if any, as may be provided in this Note. This Note shall be
governed by the laws of the State of Ohio.
14. Warrant of Attorney. Borrower authorizes any attorney at law at any time or
times to appear in any state or federal court of record in the United States of
America after all or any part of the obligations created by this Note shall have
become due, whether by lapse of time, by acceleration of the due date thereof,
or otherwise, and in each case to waive the issuance and service of process, to
present to the court this Note and any other writing (if any) evidencing the
obligation or obligations in question, to admit the due date thereof and the
nonpayment thereof when due, to confess judgment against Borrower in favor of
Bank for the full amount then appearing due, together with interest and costs of
suit, and thereupon to release all errors and waive all rights of appeal and any
stay of execution. The foregoing warrant of attorney shall survive any judgment,
it being understood that should any judgment against Borrower be vacated for any
reason, Bank may nevertheless utilize the foregoing warrant of attorney in
thereafter obtaining one or more additional judgments against Borrower.
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WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAYT ON TIME A COURT JUDGMENT MAY BE TAKEN
AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND
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THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF
ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR REGURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREMEENT,
OR ANY OTHER CAUSE.
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BORROWERS:
ATLANTIS PLASTICS INJECTION
MOLDING, INC.
By: _____________________________________
XXXX XXXXXXXX
Title: Executive Vice President
ATLANTIS PLASTICS, INC.
By: _____________________________________
XXXX XXXXXXXX
Title: Executive Vice President
Accepted by Bank:
NATIONAL CITY BANK
By: ______________________________
XXXXX X. XXXXXXXX
Title: Vice President
STATE OF GEORGIA )
) SS.
COUNTY OF XXXX )
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BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named XXXX XXXXXXXX as Executive Vice President of Atlantis
Plastics Injection Molding, Inc., who acknowledged that he did sign the
foregoing instrument on behalf of such entity, and that the same is the free act
and deed of such entity and the free act and deed of him personally.
IN TESTIMONY, I set my hand and official seal, this _____ day of
___________, 2000.
------------------------------------
NOTARY PUBLIC
STATE OF GEORGIA )
) SS.
COUNTY OF XXXX )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named XXXX XXXXXXXX as Executive Vice President of Atlantis
Plastics, Inc., who acknowledged that he did sign the foregoing instrument on
behalf of such entity, and that the same is the free act and deed of such entity
and the free act and deed of him personally.
IN TESTIMONY, I set my hand and official seal, this _____ day of
___________, 2000.
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NOTARY PUBLIC
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