Exhibit 10.51
[EXECUTION ORIGINAL]
PROMISSORY NOTE
$375,000.00 Richmond, Virginia
April 8, 1998
For Value Received, the undersigned Xxxxxxxx Family Limited
Partnership, a Virginia limited partnership (the "Maker") unconditionally
promises to pay to the order of Xxxxxxxx Adhesives, Inc. (including any
subsequent holder hereof, the "Holder"), without offset or deduction, at 000
Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, except as provided herein or at such
other place as the Holder may designate, the principal sum of Three Hundred
Seventy-Five Thousand and No/100 Dollars ($375,000.00), together with interest
on the unpaid principal balance hereof from the date hereof until this Note is
paid in full. The unpaid principal balance hereof shall bear interest at a rate
of nine percent (9%) per annum.
Principal and interest hereunder shall be due and payable as follows:
(a) Interest shall be payable monthly, in advance, beginning on
April 8, 1998 and consecutively on the same calendar day of
each such month thereafter; and
(b) Principal shall be payable in a single payment on April 8,
2001.
provided that, if not sooner paid, all unpaid principal and accrued but unpaid
interest hereunder shall be due and payable on the third (3rd) anniversary of
the date of this Note. Interest shall be computed on the basis of a 365-day year
and shall be paid for the actual number of days elapsed.
All payments made on account of the indebtedness evidenced by this Note
shall be made without offset or deduction in lawful money of the United States
of America in immediately available funds and shall be applied first to the
payment of interest accrued on the unpaid principal balance from time to time
remaining unpaid, and the remainder of such payments shall be applied on account
of principal.
In the event any payment of principal or interest due under this Note
is made more than fifteen (15) days after the date when the same is due, then
the Lender shall be entitled to collect a "late charge" in an amount equal to
five percent (5%) of such payment.
The Maker may prepay this Note in whole or in part at any time and from
time to time, without penalty. Any partial prepayments shall be expressly
identified as a prepayment and shall be in an amount of not less than Two
Thousand Five Hundred and No/100 Dollars ($2,500.00).
The Maker hereby expressly agrees that, upon default in the payment of
principal at maturity or after acceleration as herein provided, the outstanding
principal balance shall continue to bear interest at the rate of nine percent
(9%) per annum.
IMPORTANT NOTICE: THIS INSTRUMENT CONTAINS A CONFESSION OF JUDGMENT PROVISION
WHICH CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE AS A DEBTOR AND
ALLOWS THE CREDITOR TO OBTAIN A JUDGMENT AGAINST YOU WITHOUT ANY FURTHER NOTICE.
Until this Note has been satisfied in full, the Maker shall provide to
the Holder annual financial statements on or before each anniversary of this
Note in such a form as the Holder may reasonably prescribe, which financial
statements shall be certified to be true and correct by the general partner of
said partnership.
This Note has been made and is delivered pursuant to a certain
Settlement Agreement (the "Settlement Agreement") dated April 8, 1998 by and
among Xxxxxxxx Industries, Inc., Xxxxxxxx Adhesives, Inc., Xxxxxxxx Family
Limited Partnership, X. Xxxxxx Xxxxxxxx, Xx. and Xxxxxx X. Xxxxxxxx, Xx.
regarding (a) the settlement of certain claims by Xxxxxxxx Industries, Inc. and
Xxxxxxxx Adhesives, Inc. against X. Xxxxxx Xxxxxxxx, Xx. with respect to certain
actions of X. Xxxxxx Xxxxxxxx, Xx. while serving as an officer, director and
employee of Xxxxxxxx Industries, Inc. and Xxxxxxxx Adhesives, Inc., respectively
and (b) the redemption by the Maker of X. Xxxxxx Xxxxxxxx, Xx.'s partnership
interest in the Maker. Accordingly, the Maker hereof represents that the
obligation represented by this Note is for business purposes.
This Note is secured as provided in a certain Pledge and Security
Agreement (the "Pledge and Security Agreement"), dated April 8, 1998 by and
between Xxxxxxxx Adhesives, Inc. and the Xxxxxxxx Family Limited Partnership and
as further provided in a certain Unconditional Guaranty (the "Unconditional
Guaranty"), dated April 8, 1998 executed by Xxxxxx X. Xxxxxxxx, Xx.
("Guarantor") in favor of the Holder.
The entire principal amount hereof, together with all accrued interest,
shall immediately become due and payable (without demand for payment, notice of
nonpayment (except as provided below), presentment, notice of dishonor, protest,
notice of protest, or any other notice or demand, all of which the Maker hereby
waives) at the option of the Holder upon the occurrence of a Default hereunder
(failure to exercise this option shall not constitute a waiver of the right to
exercise the same in the event of any subsequent Default). A "Default" hereunder
shall be deemed to have occurred if any one or more of the following occurs:
(a) The Maker fails to pay when due any installment of principal or
interest on this Note and such failure shall continue for a
period of ten (10) days after notice of non-payment by the
Holder to the Maker;
(b) Xxxxxxxx Family Limited Partnership has breached any provision
of this Note, other than item (a) immediately above and such
breach shall continue for a period of ten (10) days after
notice of non-payment by the Holder to the Maker;
(c) Any of Xxxxxxxx Family Limited Partnership or the Guarantor, as
applicable, shall have breached a provision of the Settlement
Agreement or defaulted under the Pledge and Security Agreement
or the Unconditional Guaranty (collectively, this Note, the
Settlement Agreement, the Pledge and Security Agreement and the
Unconditional Guaranty are herein referred to as the
"Settlement Documents");
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(d) Discovery that any representation, warranty or statement made
in any of the Settlement Documents or any certificate, report
or opinion delivered pursuant hereto or in connection herewith
was incorrect, incomplete or misleading in any material respect
on or as of the date made or deemed made;
(e) A change of greater than twenty-five percent (25%) in ownership
interest shall occur in the ownership or control of Xxxxxxxx
Family Limited Partnership or Xxxxxxxx Family Corporation
(except (i) as expressly contemplated in the Settlement
Documents, or (ii) a change resulting from the death of one or
more partners);
(f) Xxxxxxxx Family Limited Partnership dissolves, terminates,
merges, reorganizes, consolidates, changes its general partner
or sells or otherwise transfers a material portion of its
assets (except as expressly contemplated in the Settlement
Documents);
(g) Xxxxxxxx Family Corporation dissolves, terminates, merges,
reorganizes, consolidates, sells or otherwise transfers a
material portion of its assets (except as expressly
contemplated in the Settlement Documents);
(h) Xxxxxxxx Family Limited Partnership shall: (i) make a general
assignment for the benefit of creditors, (ii) file a petition,
pleading or motion under any bankruptcy or other law for the
relief or aid of debtors seeking reorganization, liquidation,
dissolution or other relief as a debtor or (iii) consent to or
acquiesce in the appointment of a receiver, custodian,
liquidator, trustee or other similar official, for the whole or
any substantial part of its assets, or for any part of any
collateral securing this Note; or
(i) A petition, pleading or motion shall be filed (i) against
Xxxxxxxx Family Limited Partnership under any bankruptcy or
other law for the relief of or aid of debtors seeking
reorganization, liquidation, dissolution or other debtor relief
for such person or (ii) seeking to appoint a receiver,
custodian, liquidator, trustee or other similar official for
Xxxxxxxx Family Limited Partnership, for the whole or any
substantial part of its assets, or for any part of any
collateral securing this Note, and such petition, pleading or
motion is not dismissed within thirty (30) days after the
filing thereof, or any order for relief or appointment entered
as a result of the filing of such petition, pleading or motion
is not stayed within seven (7) days after the entry thereof.
In the event that the Maker fails to pay in full any installment due
hereunder on or before its due date, in addition to the penalty, interest and
acceleration provisions herein set forth, the Maker agrees to pay all costs and
expenses incurred by the Holder in connection with the enforcement of this Note,
the collection of the indebtedness evidenced hereby, the collection of any
judgment rendered hereon, and/or the defense of any claim arising out of, or in
any way related to this Note, including, without limitation, reasonable
attorneys' fees.
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The Maker, any co-maker, or endorser of, or grantor of collateral with
respect to, this Note and all others who may become liable for all or any part
of this obligation, agree hereby to be jointly and severally bound, and jointly
and severally waive and renounce any and all homestead and other exemption
rights and the benefit of all valuation and appraisement privileges as against
the debt or any renewal or extension thereof, and further waive demand, protest,
notice of non-payment (except as otherwise provided herein) and any and all lack
of diligence or delays in collection or enforcement hereof, and expressly
consent to any extension of time, release of any party liable for this
obligation, release of any of the collateral for this Note, acceptance of other
collateral for this Note, or any other indulgence or forbearance whatsoever. Any
such extension, release, modification, indulgence or forbearance under this Note
may be made without notice to such party and without in any way affecting the
personal liability of such party.
THE UNDERSIGNED, XXXXXXXX FAMILY LIMITED PARTNERSHIP, HAS MADE,
CONSTITUTED AND APPOINTED, AND BY THESE PRESENTS DOES HEREBY IRREVOCABLY APPOINT
X. XXXXX STREET, III AND XXXXXXX X. XXXXXX, AS ITS TRUE AND LAWFUL
ATTORNEYS-IN-FACT, EITHER OF WHOM IS HEREBY AUTHORIZED FOR THE UNDERSIGNED AND
IN THE NAME OF THE UNDERSIGNED TO CONFESS JUDGMENT AGAINST THE UNDERSIGNED IN
FAVOR OF THE HOLDER OF THIS NOTE IN THE CLERK'S OFFICE OF THE CIRCUIT COURT OF
THE CITY OF RICHMOND, VIRGINIA OR IN ANY OTHER COURT OF PROPER JURISDICTION, FOR
THE UNPAID BALANCE OF THE INDEBTEDNESS EVIDENCED BY THIS NOTE, PLUS INTEREST,
COSTS, EXPENSES AND ATTORNEYS' FEES AS SPECIFIED HEREIN UPON THE OCCURRENCE OF A
DEFAULT UNDER THIS NOTE. THIS POWER OF ATTORNEY IS A POWER COUPLED WITH AN
INTEREST. THIS POWER OF ATTORNEY SHALL NOT TERMINATE IN THE EVENT OF THE
DISSOLUTION OF XXXXXXXX FAMILY LIMITED PARTNERSHIP.
The undersigned stipulates that this Note shall be governed by and
construed under the laws of the Commonwealth of Virginia, without reference to
its conflicts of laws provisions.
No amendment, modification, termination, or waiver of any provision of
this Note, nor any consent to any departure by the Maker from any term of this
Note, shall in any event be effective unless it is in writing and signed by the
party against whom such action is sought to be enforced, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose given. In the event that any provision of this Note is determined to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity or enforceability of the remaining provisions of this Note.
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All notices, requests and demands to or upon the respective parties
shall be in writing and shall be deemed to have been given or made when
delivered in person or received via certified mail, postage prepaid, return
receipt requested, addressed:
In the case of the Holder to: Xxxxxxxx Adhesives, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
with a copy to: Xxxxxxx X. Xxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx, Xxxxxxxxx & Xxxxxxx
0000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
In the case of the Maker to: Xxxxxxxx Family Limited Partnership
c/o Xxxxxx X. Xxxxxxxx, Xx.
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to: Xxxx X. Xxxx, III, Esquire
Spotts, Xxxxx, Xxxx & Xxxx
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
or to such other addresses as may be specified by any party in a written notice
given to the other parties.
This Note shall apply to and bind the Maker, and its respective
successors and assigns.
[SIGNATURES ON NEXT PAGE]
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WITNESS the following signature.
MAKER:
XXXXXXXX FAMILY LIMITED PARTNERSHIP
By: Xxxxxxxx Family Corporation,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx, Xx.,
Its President
EIN:
Address: 0000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
COMMONWEALTH OF VIRGINIA,
CITY/COUNTY OF RICHMOND, to wit:
The foregoing instrument was acknowledged before me, a notary public in
and for the jurisdiction aforesaid, this 10th day of April, 1998, by Xxxxxx X.
Xxxxxxxx, Xx., President of Xxxxxxxx Family Corporation, which is the General
Partner of Xxxxxxxx Family Limited Partnership, on behalf of the partnership.
/s/
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Notary Public
My commission expires: 01/31/2000
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