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Exhibit 10(i)
PROMISSORY NOTE
(AS AMENDED AND RESTATED OCTOBER 1, 1998)
$2,900,000
The outstanding common stock of ALBEX ALUMINUM, INC., an Ohio
Corporation ("Maker"), is being purchased pursuant to a stock purchase agreement
dated effective March 31, 1997 ("Stock Purchase Agreement") between RVM
INDUSTRIES, INC. and XXXXX XXXXXXX, Trustee of The Xxxxx Xxxxxxx Trust U/A Dated
March 12, 1991 of 000 X. Xxxxxxxx Xxxx, Xxxxx, Xxxx 00000 ("Trust"), and a
promissory note is being issued by RVM Industries, Inc. to Trust pursuant to the
Stock Purchase Agreement for the purchase price of Maker's stock.
Maker has previously issued to Xxxxx Xxxxxxx ("Holder") its promissory
note dated January 17, 1997 ("Note"). On March 31, 1997 Maker and Holder amended
and restated the Note to provide for a moratorium of principal payments
thereunder in order to facilitate the purchase of Maker's stock pursuant to the
Stock Purchase Agreement.
Maker and Holder desire to amend and restate the Note to provide for a
moratorium of principal payments and a six month extension of the term of the
Note.
NOW, THEREFORE, Maker and Holder, based upon their mutual promises and
for other valuable consideration hereby amend and restate the Note and
incorporate the above recitals in the following amendment and restatement as
follows:
FOR VALUE RECEIVED, Maker promises to pay to the order of Holder, the
principal sum of $2,900,000, plus interest at the rate of 7% per annum (unless
in default). Interest will begin to accrue on the principal sum on April 1, 1997
and continue to accrue thereafter until this Note is paid in full.
This Note is payable as follows:
A. Interest only payments on the unpaid principal balance of the Note
beginning May 1, 1997 through December 1, 1997; and recommencing on
October 1, 1998 through September 1, 1999.
B. 60 equal, monthly installments of principal due and payable on the
first day of the month and in the amount of $48,333.33, with interest
on the unpaid principal sum, beginning January 1, 1998 through
September 1, 1998, and recommencing on October 1, 1999, until this Note
is paid in full.
All payments under this Note are subject to the terms of the (i) Subordination
Agreement dated January 17, 1997 between First Merit/First National Bank of
Ohio, Maker, and Holder, (ii) Intercreditor and Subordination Agreement dated
July 1, 1995, between the State of Ohio, Maker, and Holder (iii) Consent
Agreement dated effective March 31, 1997, between the State of Ohio,
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Maker, and Holder and (iv) the Stock Purchase Agreement. During
the time period for payment of the purchase price under the Stock Purchase
Agreement, principal payments under this Note will be suspended and Maker must
pay to Holder interest only accruing on the unpaid principal sum on the first
day of each calendar month during such payment period.
Payments under this Note must be delivered to Holder at 000 X. Xxxxxxxx
Xxxx, Xxxxx, Xxxx 00000, or at such other location designated by Holder to Maker
in writing.
A PORTION OF THE INDEBTEDNESS EVIDENCED HEREBY HAS BEEN SUBORDINATED IN
FAVOR OF THE DIRECTOR OF DEVELOPMENT OF THE STATE OF OHIO AND THE PROVIDENT
BANK, AS TRUSTEE, PURSUANT TO THE TERMS OF AN INTERCREDITOR AND SUBORDINATION
AGREEMENT DATED AS OF JULY 1,1995. THE RIGHTS AND INTERESTS OF ANY HOLDER,
TRANSFEREE, OR PARTY CLAIMING ANY INTEREST UNDER OR AS A RESULT OF THIS
INSTRUMENT ARE SUBJECT TO ALL TERMS OF THE REFERENCED AGREEMENT.
Maker waives presentment, protest, demand, notice of protest, demand,
dishonor and non-payment of this Note, and agrees to comply with each of the
covenants, conditions, provisions and agreements between Maker and Holder, the
terms of which are incorporated herein by reference. No extension of time for
the payment of this Note with any person or entity now or hereafter liable for
the payment of this Note will operate to release, discharge, modify, change, or
affect the original liability under this Note, either in whole or in part, if
Holder is not a party to such agreement for the extension of time.
If any payment agreed to be paid hereunder becomes due and remains
unpaid for a period of ten days, or if Maker becomes insolvent, files for
voluntary bankruptcy or receivership, or if a petition for involuntary
bankruptcy or receivership is filed against Maker, or any action is commenced
concerning the bankruptcy, reorganization, dissolution or liquidation of Maker
or for other relief relating to bankruptcy, insolvency, arrangement,
reorganization, receivership or other debtor relief under any law or statute of
any jurisdiction, whether now or hereafter in effect, or if Maker makes an
assignment for the benefit of creditors, Holder may, at Holder's option, in
addition to any other remedy available to Holder at law or in equity declare the
remainder of this Note then due and collectible and any failure to exercise this
option will not constitute a waiver of the right to exercise the same at any
other time. Upon the occurrence of any event of default as set forth in this
paragraph, interest on this Note will accrue at the rate of 12% per annum.
Subject to the suspension of principal payments under this Note during
the payment period for the purchase price under the Stock Purchase Agreement,
Maker may pre-pay the obligation set forth in this Note in whole or in part at
any time without penalty. Pre-payments will first be applied to the interest due
and then to the remaining principal sum.
If any clause or provision of this Note is determined to be illegal,
invalid, or unenforceable by any court, the illegality or unenforceability of
such clause or provision will not affect the validity or enforceability of the
remainder thereof or of any other clause or provision hereof, and this Note
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will be construed and enforced as if such illegal, invalid, or other
unenforceable clause or provision had not been contained herein, and all other
covenants, obligations, and agreements will be enforceable to the full extent
permitted by law.
MAKER:
ALBEX ALUMINUM, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX, ITS PRESIDENT
HOLDER:
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
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