Exhibit 99.2
PROMISSORY NOTE
$1,000,000.00 COLUMBUS, GA
JULY 6, 2004
THIS PROMISSORY NOTE IS SUBJECT TO THE PROVISIONS OF THAT CERTAIN SUBORDINATION
AGREEMENT DATED JULY 6, 2004 BY AND BETWEEN X.X. XXXXXXX CO. AND UNION BANK OF
CALIFORNIA, N.A. ("AGENT"), AS ADMINISTRATIVE AGENT AND A LENDER, FOR ITSELF AND
ON BEHALF OF CERTAIN LENDERS (COLLECTIVELY, THE "LENDERS") FROM TIME TO TIME
PARTY TO THAT CERTAIN REVOLVING/TERM LOAN CREDIT AGREEMENT DATED AS OF JULY 6,
2004 BY AND BETWEEN AGENT, THE LENDERS AND XXXXXXXX, INC.
FOR VALUE RECEIVED, XXXXXXXX ACQUISITION CORP., a Delaware corporation
(hereinafter referred to as "Maker"), promises to pay to the order of X. X.
XXXXXXX CO., a Georgia corporation, (hereinafter, together with any assignee or
holder hereof, referred to as "Holder"), at Xxxx Xxxxxx Xxx 000, Xxxxxxxx,
Xxxxxxx 00000-0000 or at such other place as Holder may designate by giving
written notice to Maker at the address set forth below, the principal amount of
ONE MILLION and NO/100 DOLLARS ($1,000,000.00), with simple interest on the
daily outstanding principal as set forth below.
Principal shall be due and payable in four (4) annual principal
installments of TWO HUNDRED FIFTY THOUSAND and 00/100 ($250,000.00) Dollars
each, beginning on June 30, 2005 and continuing on June 30, 2006, June 30, 2007,
and June 30, 2008 at which time all unpaid principal together with accrued but
unpaid interest shall be due and payable. Accrued interest on the outstanding
principal balance at the rate set forth below shall be due and payable on the
same day as each installment of principal shall be due and payable.
The initial rate of interest shall be equal to three and one half percent
(3-1/2 %) simple interest. Interest shall be computed for each day during the
term of this Note by multiplying the outstanding principal balance hereunder at
the close of business on that day by a daily interest factor, which daily
interest factor shall be calculated by dividing the aforesaid interest rate per
annum in effect on that day by 365 days.
The indebtedness evidenced by this Note may be prepaid, either in whole or
in part, without penalty, at any time. Any prepayment shall be applied first to
accrued interest outstanding on the unpaid balance of this Note as of the date
of said prepayment, then to the outstanding principal balance.
This Note shall be secured.
If any default is made in the payment of principal or interest as
stipulated above and such default is not cured within fifteen (15) days
thereafter, then Holder may, at Holder's option, declare the unpaid principal
balance of this Note and all accrued interest thereon, immediately due, payable
and collectible. The failure of Holder to exercise this option shall not
constitute a waiver of the right to exercise the same in the event of any
subsequent default.
In the event that all or any portion of principal or interest hereunder
remains unpaid after the same becomes due and payable, whether at stated
maturity, by acceleration, or otherwise, any such sums shall bear interest at a
rate equal to twelve percent (12%) per annum.
Every notice, demand, consent or other communication authorized or
required by this Note shall
be in writing and shall be deemed to be given when hand delivered or when
deposited in the United States registered or certified mail, return receipt
requested, with postage prepaid, and addressed:
If to Holder: Xx. Xxxxxx X. Xxxxxx, Xx.
X. X. Xxxxxxx, Co. 0000 Xxxxx Xxxxxx
Xxxx Xxxxxx Xxx 000 Xxxxxxxx,
Xxxxxxx 00000-0000
If to Maker: Xx. Xxxxx Xxxxxxx
Xxxxxxxx Acquisition Corp.
0000 Xxxxx Xxx. X.
Xxxxxxxx, XX 00000
or at such other address as either party may from time to time designate in
writing.
Maker hereby waives and renounces any and all exemptions granted to Maker
under the Constitution and laws of the United States or any state as against
this debt or any renewal or extension thereof, and further waives presentment,
demand, protest, and notice of dishonor, protest and non-payment except such
notice as may be otherwise required herein.
Maker's obligations hereunder are without set-off. Any right of set-off
Maker may have is hereby waived and released.
If any part of the indebtedness evidenced hereby, is collected by or
through an attorney-at-law, Maker agrees to pay reasonable attorney's fees and
all other expenses and costs of collection together with interest thereon at a
rate equal to twelve percent (12%) per annum.
Time is of the essence hereof.
If from any circumstances whatsoever, the fulfillment of any provision of
this Note or of any other instrument evidencing or securing the indebtedness
evidenced hereby, at the time performance of such provision shall be due, shall
involve transcending the limit of validity presently prescribed by any
applicable usury statute or any other applicable law with regard to obligations
of like character and amount, then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity, so that in no event shall any
exaction be possible under this Note or under any other instrument evidencing or
securing the indebtedness evidenced hereby that is in excess of the current
limit of such validity, but such obligation shall be fulfilled to the limit of
such validity. In the event of any such reduction of said obligation, the unpaid
principal balance of this Note, together with all accrued interest thereon and
any other sums advanced hereunder or under any instruments securing the
indebtedness evidenced hereby, shall, at the option of Holder, become
immediately due and payable.
Holder and Maker hereby agree that any dispute concerning this Note,
including actions for collections of any amount due hereunder, shall be brought
in any state or federal court in the State of Georgia. Holder and Maker hereby
agree that venue of any dispute shall be proper in said court. This Note shall
be construed according to the laws of the State of Georgia.
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IN WITNESS WHEREOF, Maker has caused this Promissory Note to be executed
by its duly authorized officers and its corporate seal affixed, the day and year
first above written.
XXXXXXXX ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------
Title: President
Attest: /s/ Xxxxxx Xxxxx
----------------------------
Title: Corporate Secretary
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