AMENDED AND RESTATED CONVERTIBLE TERM NOTE
Exhibit
10.8
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$2,000,000
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June
12, 2007
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AMENDED
AND RESTATED
This
Note and the Common Stock issuable upon conversion hereof (until such time,
if
any, as such Common Stock is registered with the Securities and Exchange
Commission pursuant to an effective registration statement) have not been
registered under the Securities Act of 1933, as amended (the “Act”), or any
state securities laws, and may not be sold, offered for sale of otherwise
transferred unless registered or qualified under the Act and applicable state
securities laws or unless the Maker receives an opinion, in form and from
counsel reasonably acceptable to the Maker, that registration, qualification
or
other such actions are not required under any such laws.
FOR
VALUE
RECEIVED, XXXXXXX INDUSTRIES, INC., a Delaware corporation (the “Maker”),
hereby promises to pay to ComVest Capital, LLC, a Delaware limited liability
company (“ComVest”),
or
registered assigns (collectively, the “Payee”),
the
sum of Two Million ($2,000,000) Dollars (the “Principal”),
with
interest thereon, on the terms and conditions set forth herein and in the
Revolving Credit and Term Loan Agreement dated as of February 21, 2007 by and
between the Maker and ComVest (as same may be amended, modified, supplemented
and/or restated from time to time, the “Loan
Agreement”).
Terms
defined in the Loan Agreement and not otherwise defined herein shall have the
meanings assigned thereto in the Loan Agreement.
Payments
of principal of, interest on and any other amounts with respect to this
Convertible Promissory Note (this “Note”)
are to
be made in lawful money of the United States of America.
Principal
and accrued interest of this Note may or shall be convertible into common stock
of the Maker as provided in Section 3 below.
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1.
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Payments.
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(a) Interest.
This
Note shall bear interest (“Interest”)
on
Principal amounts outstanding from time to time from the date hereof at the
rate
of ten (10%) percent per annum; provided,
however,
that
during the continuance of any Event of Default, the Interest rate hereunder
shall be increased to fourteen (14%) percent per annum. All Interest shall
be
computed on the daily unpaid Principal balance of this Note based on a three
hundred sixty (360) day year, and shall be payable monthly in arrears on the
last day of each calendar month commencing March 31, 2007 and on the maturity
hereof.
(b) Principal.
The
Principal of this Note shall be payable in thirty (30) equal monthly
installments of $66,666.67 each, due and payable on the last day of each
calendar month commencing September 30, 2007 and continuing through and
including February 28, 2010.
(c) Non-Business
Day.
If any
scheduled payment date as aforesaid is not a business day in either the State
of
Florida or the State of Texas, then the payment to be made on such scheduled
payment date shall be due and payable on the next succeeding business day,
with
additional interest on any Principal amount so delayed for the period of such
delay.
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2.
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Prepayment.
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(a) Optional
Prepayment of Principal.
The
unpaid Principal balance of this Note may, at the Maker’s option, be prepaid in
whole or in part, at any time or from time to time, upon fifteen (15) days’
prior written notice to the Payee, provided that the Payee shall retain the
right to convert all or any portion of such Principal amount called for
prepayment, together with any or all Interest accrued thereon, at any time
prior
to the date fixed for prepayment, and thereafter until such prepayment is
actually made. Any optional prepayment of Principal hereunder shall require
the
simultaneous payment of a prepayment premium as provided in Section 2.03(c)
of
the Loan Agreement.
(b) Mandatory
Prepayment of Principal.
The
Principal of this Note may be required to be prepaid, in whole or in part,
at
any time and from time to time in accordance with Section 2.02(b) of the Loan
Agreement.
(c) Interest.
Except
to the extent that such Interest is converted as herein provided, each
prepayment of Principal shall be accompanied by all accrued Interest on the
Principal amount prepaid or converted accrued to the date of prepayment or
conversion.
(d) Application
of Payments.
Any and
all prepayments hereunder shall be applied first to any prepayment premium
required under Section 2(a) above, then to unpaid accrued Interest on the
Principal amount being prepaid, and finally to the remaining Principal
installments in inverse order of maturity.
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3.
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Conversion.
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(a) Optional
and Mandatory Conversion
The
Payee may, at its option, upon written notice to the Maker given at any time
and
from time to time, convert all or any portion of the unpaid Principal balance
of
this Note, and/or any accrued Interest thereon, into shares of common stock
of
the Maker (“Common
Stock”),
at a
price of Eighty ($.80) Cents per share of Common Stock (as same may be adjusted
from time to time in accordance herewith, the “Conversion
Price”).
In
addition, if (i) there is not then continuing any Default or Event of
Default under and as defined in the Loan Agreement, (ii) the Common Stock
is then traded or listed for trading on any national securities exchange or
the
NASDAQ National Market or NASDAQ Capital Market, (iii) there is then in
effect a valid registration statement under the Securities Act of 1933, as
amended, in respect of the Common Stock issued and issuable upon conversion
of
this Note and upon exercise of the Warrants issued pursuant to the Loan
Agreement, such that all such shares of Common Stock will be freely tradable
immediately upon issuance at such time, (iv) the Maker is current in all of
its
required filings with the Securities and Exchange Commission, (v) the reported
Trading Price (as hereinafter defined) of the Common Stock for each of the
twenty (20) consecutive trading days immediately prior thereto has been equal
to
or greater than 165% of the Conversion Price in effect on each such trading
day,
and (vi) the average daily trading volume of the Common Stock as reported by
the
principal exchange or trading medium on which the Common Stock is listed or
quoted has been equal to or greater than 100,000 shares (such number to be
subject to adjustment on a proportionate basis in the event of each and every
stock split, stock dividend, combination of shares, recapitalization or other
such event respecting the Common Stock which may occur subsequent to the date
hereof) during the three (3) months immediately prior thereto, then
the
Maker may, upon five (5) business days’ prior written notice to the Payee,
require the Payee to convert all or any portion of the Principal of this Note
into shares of Common Stock at the Conversion Price then in effect; and in
the
event of any such conversion at the option of the Maker, the Maker shall give
written notice thereof to the Payee certifying as to the satisfaction of the
foregoing conditions (including a detailed schedule of Trading Prices and
volumes for purposes of the foregoing clauses (v) and (vi)), and shall pay
to
the Payee, simultaneously with the delivery of stock certificates in accordance
with Section 3(c), all unpaid accrued Interest on the Principal amount so
converted. As used herein, the term “Trading Price” on any relevant date means
the closing sale price (or, if no closing sale price is reported, the last
reported sale price) of the Common Stock (regular way). The effective date
of
any conversion hereunder is herein referred to as the “Conversion
Date.”
To
the
extent that this Note is converted only in part, then such conversion shall
be
treated as a prepayment of the Principal amount converted in accordance with
Section 2(d) above, provided that no prepayment premium shall be required in
respect of any conversion.
(b) Mechanics
of Conversion.
Upon
notice to the Maker of the Payee’s conversion election as provided in Section
3(a), or upon notice to the Payee of the Maker’s conversion election as provided
in Section 3(a), the Maker shall, in accordance with Section 3(c), issue to
the
Payee (or to the Payee’s designee(s) set forth in the Payee’s conversion
election, or in any direction given to the Maker in response to the Maker’s
conversion election) the number of shares of Common Stock to which the Payee
shall be entitled upon such conversion, and shall deliver or cause to be
delivered to the Payee or such designee(s) the certificates representing such
shares of Common Stock. All shares of Common Stock issued or delivered upon
any
conversion hereunder shall, when issued or delivered, be duly authorized,
validly issued, fully paid and nonassessable. In lieu of any fractional shares
to which the Payee would otherwise be entitled, the Maker shall pay cash equal
to such fraction multiplied by the per share Conversion Price.
(c) Issuance
of Common Stock Upon Conversion.
Within a
reasonable time, not exceeding five (5) Business Days after the Conversion
Date,
the Maker shall deliver or cause to be delivered, to or upon the written order
of the Payee of this Note so converted, certificates representing the number
of
fully paid and nonassessable shares of Common Stock into which this Note has
been converted in accordance with the provisions of this Section 3. If so
requested by the Maker, the Payee shall, within a reasonable time (not exceeding
five (5) Business Days after receipt by the Payee of such certificates),
surrender this Note to the Maker for cancellation, against delivery of a
replacement Note representing the remaining balance (if any) of this Note which
has not been converted. Subject to the following provisions of this Section
3,
such conversion shall be deemed to have occurred on the Conversion Date, so
that
the Payee of this Note or such Payee’s designee(s) shall be treated for all
purposes as having become the record Payee of such shares of Common Stock at
such time.
(d) Taxes
on Conversion.
The
issuance of certificates for shares for Common Stock upon the conversion of
this
Note shall be made without charge by the Maker to the converting Payee for
any
tax in respect of the issuance of such certificates and such certificates shall
be issued in the name of, or in such names as may be directed by, the Payee
of
this Note; provided,
however,
that
the Maker shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance or delivery of any such certificate
in
a name other than that of the Payee of this Note, and the Maker shall not be
required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Maker the amount
of any such tax or shall have established to the satisfaction of the Maker
that
any such tax has been paid.
(e) Adjustment
of Shares
(i) Stock
Dividends, Distributions or Subdivisions.
In the
event that, at any time and from time to time from and after the date of this
Note, the Maker shall issue additional shares of Common Stock (or securities
convertible into Common Stock) in a stock dividend, stock distribution or
subdivision paid with respect to Common Stock, or declare any dividend or other
distribution payable in additional shares of Common Stock (or securities
convertible into Common Stock) or effect a split or subdivision of the
outstanding shares of Common Stock, then, concurrently with the effectiveness
of
such stock dividend, stock distribution or subdivision, the then-effective
Conversion Price shall be proportionately decreased, and the number of shares
of
Common Stock issuable upon conversion of this Note shall thus be proportionately
increased.
(ii) Combinations
or Consolidations.
In the
event that, at any time and from time to time from and after the date of this
Note, the outstanding shares of Common Stock shall be combined or consolidated,
by reclassification or otherwise, into a lesser number of shares of Common
Stock, then, concurrently with the effectiveness of such combination or
consolidation, the then-effective Conversion Price shall be proportionately
increased, and the number of shares of Common Stock issuable upon conversion
of
this Note shall thus be proportionately decreased.
(iii) Other
Dividends or Distributions.
If the
Maker, at any time or from time to time after the issuance of this Note, makes
a
distribution to the holders of Common Stock which is payable in securities
of
the Maker other than Common Stock, then, in each such event, provision shall
be
made so that the Payee shall receive upon conversion of this Note, in addition
to the number of shares of Common Stock, the amount of such securities of the
Maker which would have been received if the portion of this Note so converted
had been exercised for Common Stock on the date of such event, subject to
adjustments subsequent to the date of such event with respect to such
distributed securities which shall be on terms as nearly equivalent as
practicable to the adjustments provided in this Section 3(e)(iii) and all
other adjustments under this Section 3(e). Nothing contained in this
Section 3(e)(iii) shall be deemed to permit the payment of any distribution
in
violation of the Loan Agreement.
(iv) Merger,
Consolidation or Exchange.
If, at
any time or from time to time after the date of this Note, there occurs any
merger, consolidation, arrangement or statutory share exchange of the Maker
with
or into any other person or entity, then, in each such event, provision shall
be
made so that the Payee shall receive upon conversion of this Note the kind
and
amount of shares and other securities and property (including cash) which would
have been received upon such merger, consolidation, arrangement or statutory
share exchange by the Payee if the portion of this Note so converted had been
exercised for shares of Common Stock immediately prior to such merger,
consolidation, arrangement or statutory share exchange, subject to adjustments
for events subsequent to the effective date of such merger, consolidation,
arrangement or statutory share exchange with respect to such shares and other
securities which shall be on terms as nearly equivalent as practicable to the
adjustments provided in this Section 3(e)(iv) and all other adjustments
under this Section 3(e). Nothing contained in this Section 3(e)(iv) shall
be deemed to permit any such transaction in violation of the Loan
Agreement.
(v) Recapitalization
or Reclassification.
If, at
any time or from time to time after the date of this Note, the shares of Common
Stock issuable upon conversion of this Note are changed into the same or a
different number of securities of any class of the Maker, whether by
recapitalization, reclassification or otherwise (other than a merger,
consolidation, arrangement or statutory share exchange provided for elsewhere
in
this Section 3(e)), then, in each such event, provision shall be made so
that the Payee shall receive upon conversion of this Note the kind and amount
of
securities or other property which would have been received in connection with
such recapitalization, reclassification or other change by the Payee if the
portion of this Note so converted had been converted immediately prior to such
recapitalization, reclassification or change, subject to adjustments for events
subsequent to the effective date of such recapitalization, reclassification
or
other change with respect to such securities which shall be on terms as nearly
equivalent as practicable to the adjustments provided in this
Section 3(e)(v) and all other adjustments under this
Section 3(e).
(vi) Extraordinary
Dividends or Distributions.
If, at
any time or from time to time after the date of this Note, the Maker shall
declare a dividend or any other distribution upon the Common Stock payable
otherwise than out of current earnings, retained earnings or earned surplus
and
otherwise than in shares of Common Stock, then the Conversion Price in effect
immediately prior to such declaration shall be reduced by an amount equal,
in
the case of a dividend or distribution in cash, to the amount thereof payable
per share of Common Stock or, in the case of any other dividend or distribution,
to the value thereof per share of Common Stock at the time such dividend or
distribution was declared, as determined by the Board of Directors of the Maker
in good faith. Such reductions shall take effect as of the date on which a
record is taken for the purposes of the subject dividend or distribution, or,
if
a record is not taken, the date as of which the holders of record of Common
Stock entitled to such dividend or distribution are to be determined. Nothing
contained in this Section 3(e)(vi) shall be deemed to permit the payment of
any
dividend in violation of the Loan Agreement.
(vii) Dilutive
Issuances.
(A) If
the Maker, at any time or from time to time, issues or sells any Additional
Shares of Common Stock (as defined below), other than as provided in the
foregoing subsections of this Section 3(e), for a price per share (which,
in the case of options, warrants, convertible securities or other rights,
includes the amounts paid therefor plus the exercise price, conversion price
or
other such amounts payable thereunder) that is less than the
Conversion Price then in effect, then and in each such case, the then applicable
Conversion Price shall automatically be reduced as of the opening of business
on
the date of such issue or sale, to a price determined by multiplying the
Conversion Price then in effect by a fraction (i) the numerator of which
shall be (A) the number of share of Common Stock deemed outstanding (as
determined below) immediately prior to such issue or sale, plus (B) the
number of shares of Common Stock which the aggregate consideration received
by
the Maker for the total number of Additional Shares of Common Stock so issued
would purchase at such Conversion Price, and (ii) the denominator of which
shall be the number of shares of Common Stock deemed outstanding (as defined
below) immediately prior to such issue or sale plus the total number of
Additional Shares of Common Stock so issued; provided,
however,
that
upon the expiration or other termination of options, warrants or other rights
to
purchase or acquire Common Stock which triggered any adjustment under this
Section 3(e)(vii), and upon the expiration or termination of the right to
convert or exchange convertible or exchangeable securities (whether by reason
of
redemption or otherwise) which triggered any adjustment under this Section
3(e)(vii), if any thereof shall not have been exercised, converted or exchanged,
as applicable, the number of shares of Common Stock deemed to be outstanding
pursuant to this Section 3(e)(vii) shall be reduced by the number of shares
as to which options, warrants and rights to purchase or acquire Common Stock
shall have expired or terminated unexercised, and as to which conversion or
exchange rights shall have expired or terminated unexercised, and such number
of
shares shall no longer be deemed to be outstanding; and the Conversion Price
then in effect shall forthwith be readjusted and thereafter be the price that
it
would have been had adjustment been made on the basis of the issuance only
of
the shares of Common Stock actually issued. For purposes of the preceding
sentence, the number of shares of Common Stock deemed to be outstanding as
of a
given date shall be the sum of (x) the number of shares of Common Stock
actually outstanding, (y) the number of shares of Common Stock into which
this Note could be converted on the day immediately preceding the given date,
and (z) the number of shares of Common Stock which could be obtained
through the exercise or conversion of all other rights, options and convertible
securities outstanding on the day immediately preceding the given date.
“Additional
Shares of Common Stock”
shall
mean all shares of Common Stock, and all options, warrants, convertible
securities or other rights to purchase or acquire Common Stock, issued by the
Maker other than (i) shares of Common Stock issued pursuant to the exercise
of options, warrants or convertible securities outstanding on February 21,
2007
(including, without limitation, all of the Warrants issued pursuant to the
Loan
Agreement), or thereafter issued from time to time pursuant to and in accordance
with stock purchase or stock option plans as in effect on February 21, 2007,
and
(ii) shares of Common Stock and/or options, warrants or other Common Stock
purchase rights issued subsequent to February 21, 2007 for up to an aggregate
of
900,000 shares of Common Stock (such number to be subject to adjustment in
accordance with Sections 3(e)(i) and 3(e)(ii) above), where such options,
warrants or other rights are issued both (x) with exercise prices per share
of
Common Stock at the then-current fair market value of a share of Common Stock,
as determined in good faith by the Board of Directors of the Maker or the
Compensation Committee thereof, and (B) to employees, officers or directors
of,
or consultants to, the Maker or any Subsidiary pursuant to stock purchase or
stock option plans or other arrangements that are approved by the Maker’s Board
of Directors or the Compensation Committee thereof, and by the Maker’s
stockholders.
(B) In
the
event that the exercise price, conversion price, purchase price or other price
at which shares of Common Stock are purchasable pursuant to any options,
warrants, convertible securities or other rights to purchase or acquire Common
Stock is reduced at any time or from time to time (other than under or by reason
of provisions designed to protect against dilution), then, upon such reduction
becoming effective, the Conversion Price then in effect hereunder shall
forthwith be decreased to such Conversion Price as would have been obtained
had
the adjustments made and required under this Section 3(e)(vii) upon the issuance
of such options, warrants, convertible securities or other rights been made
upon
the basis of (and the total consideration received therefor) (i) the issuance
of
the number of shares of Common Stock theretofore actually delivered upon the
exercise, conversion or exchange of such options, warrants, convertible
securities or other rights, (ii) the issuance of all of the Common Stock and
all
other options, warrants, convertible securities and other rights to purchase
or
acquire Common Stock issued after the issuance of the modified options,
warrants, convertible securities or other rights, and (iii) the original
issuance at the time of the reduction of any such options, warrants, convertible
securities or other rights then still outstanding.
(C) In
no
event shall an adjustment under this Section 3(e)(vii) be made if it would
result in an increase in the then applicable Conversion Price.
(viii) Certificate
of Adjustment.
Whenever the Conversion Price and/or the number of share of Common Stock
receivable upon conversion of this Note is adjusted, the Maker shall promptly
deliver to the Payee a certificate of adjustment, setting forth the Conversion
Price and/or shares of Common Stock issuable after adjustment, a brief statement
of the facts requiring the adjustment and the computation by which the
adjustment was made. The certificate of adjustment shall be prima facie evidence
of the correctness of the adjustment.
(ix) Successive
Application.
The
provisions of this Section 3(e) shall be applicable successively to each event
described herein which may occur subsequent to the date of this Note and prior
to the conversion in full of this Note.
(x) Fractional
Shares.
No
fractional shares of Common Stock shall be issuable by reason of any adjustments
made pursuant to this Section 3(e); and in lieu of any such fractional shares,
the Maker shall pay cash therefor in accordance with Section 3(b)
above.
(f) No
Impairment.
The
Maker will not, by amendment of its incorporation documents or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder but will at all times in good faith assist in the carrying out of
all
the provisions of this Section 3 and in the taking of all such action as may
be
necessary or appropriate in order to protect the conversion rights of the Payee
of this Note against impairment. In the event of any merger or consolidation
in
which the Maker is not the surviving entity, the Maker shall make appropriate
arrangements in order that, upon any subsequent conversion of this Note, the
Payee shall become entitled to receive the same securities or other
consideration that such Payee would have received had such conversion been
made
immediately prior to the consummation of such merger or consolidation, subject
to further adjustments, of the type provided in this Note, with respect to
any
events relating to any such securities occurring subsequent to the consummation
of such merger or consolidation.
(g) Common
Stock Reserved.
The
Maker shall at all times reserve and keep available out of its authorized but
unissued Common Stock such number of shares of Common Stock as shall from time
to time be sufficient to effect the full conversion of this Note into Common
Stock.
(h) Restricted
Securities.
The
shares of Common Stock issuable to the Payee hereunder (the “Shares”)
may
not, at the time of issuance, have been registered under any federal or state
securities laws, and may constitute “restricted securities” within the meaning
of federal and state securities laws. By its receipt of Shares, if the Shares
are not then the subject of an effective registration statement under the
Securities Act, the Payee will be deemed to acknowledge and confirm that it
is
receiving such Shares for its own account for investment, and not with a view
to
the resale or distribution thereof in violation of any federal or state
securities laws.
4. Events
of Default.
The
occurrence and continuance of an Event of Default under the Loan Agreement
shall
constitute a default under this Note and shall entitle the Payee to accelerate
the entire indebtedness hereunder and take such other action as may be provided
for in the Loan Agreement and/or in any and all other instruments evidencing
and/or securing the indebtedness under this Note, or as may be provided under
the law.
5. Communications
and Notices.
Except
as otherwise specifically provided herein, all communications and notices
provided for in this Note shall be sent by post-paid first class mail, reputable
overnight courier or facsimile to the Payee at the Payee’s address as provided
to the Secretary of the Maker from time to time and, if to the Maker, at 00000
Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxxxx X.
Xxxxx, Executive Vice President and Secretary. Any first-class mail notice
provided pursuant to this Section 5 shall be deemed given three (3) Business
Days after being sent by first-class mail. Any notice sent by overnight courier
shall be deemed given on the next Business Day after being deposited with the
courier with all charges prepaid or billed to the account of the sender. Notices
sent by facsimile shall be deemed received upon delivery. The Maker and the
Payee may from time to time change their respective addresses, for purposes
of
this Section 5, by written notice to the other parties; provided, however,
that
notice of such change shall be effective only upon receipt.
6. Governing
Law.
This
Note shall be construed in accordance with and governed by the
laws
of the State of New York, except to the extent superseded by Federal
enactments.
7. Assignment.
This
Note shall be binding upon and shall inure to the benefit of the respective
successors and permitted assigns of the parties hereto, provided that the Maker
may not assign any of its rights or obligations hereunder without the prior
written consent of the Payee.
8. Waiver
and Amendment.
No
waiver of a right in any instance shall constitute a continuing waiver of
successive rights, and any one waiver shall govern only the particular matters
waived. Neither any provision of this Note nor any performance hereunder may
be
amended or waived except pursuant to an agreement in writing signed by the
party
against whom enforcement thereof is sought. Except as otherwise expressly
provided in this Note, the Maker hereby waives diligence, demand, presentment
for payment, protest, dishonor, nonpayment, default, notice of any and all
of
the foregoing, and any other notice or action otherwise required to be given
or
taken under the law in connection with the delivery, acceptance, performance,
default, enforcement or collection of this Note, and expressly agrees that
this
Note, or any payment hereunder, may be extended, modified or subordinated (by
forbearance or otherwise) from time to time, without in any way affecting the
liability of the Maker. The Maker further waives the benefit of any exemption
under the homestead exemption laws, if any, or any other exemption, appraisal
or
insolvency laws, and consents that the Payee may release or surrender, exchange
or substitute any personal property or other collateral security now held or
which may hereafter be held as security for the payment of this
Note.
9. Usury
Savings Clause.
All
agreements between the Maker and the Payee are hereby expressly limited to
provide that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to the Payee for the use, forbearance
or detention of the indebtedness evidenced hereby exceed the maximum amount
which the Payee is permitted to receive under applicable law. If, from any
circumstances whatsoever, fulfillment of any provision hereof or of the Loan
Agreement or any Loan Document thereunder, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by law, then, ipso facto,
the
obligation to be fulfilled shall automatically be reduced to the limit of such
validity, and if from any circumstance the Payee shall ever receive as interest
an amount which would exceed the highest lawful rate, such amount which would
be
excessive interest shall be applied to the reduction of the principal balance
of
any of the Maker’s Obligations (as such term is defined in the Loan Agreement)
to the Payee, and not to the payment of interest hereunder. To the extent
permitted by applicable law, all sums paid or agreed to be paid for the use,
forbearance or detention of the indebtedness evidenced by this Note shall be
amortized, prorated, allocated and spread throughout the full term of such
indebtedness until payment in full, to the end that the rate or amount of
interest on account of such indebtedness does not exceed any applicable usury
ceiling. As used herein, the term “applicable law” shall mean the law in effect
as of the date hereof, provided, however, that in the event there is a change
in
the law which results in a higher permissible rate of interest, then this Note
shall be governed by such new law as of its effective date. This provision
shall
control every other provision of all agreements between the Maker and the
Payee.
10. Collection
Costs.
In the
event that the Payee shall place this Note in the hands of an attorney for
collection during the continuance of any Event of Default, the Maker shall
further be liable to the Payee for all costs and expenses (including reasonable
attorneys’ fees) which may be incurred by the Payee in enforcing this Note, all
of which costs and expenses shall be obligations under and part of this Note;
and the Payee may take judgment for all such amounts in addition to all other
sums due hereunder.
11. Prior
Note.
This
Note amends, restates and supersedes in its entirety the Convertible Term Note
dated February 21, 2007 issued by the Maker to ComVest, provided that this
Note
does not effect a novation of any obligations under such prior Convertible
Term
Note (all of which obligations shall henceforth be evidenced by this
Note).
[The
remainder of this page is intentionally blank]
IN
WITNESS WHEREOF, the Maker has executed this Note on the date first above
written.
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XXXXXXX
INDUSTRIES, INC.
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By:
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/s/
Xxxxxxx X. Xxxxx, EVP
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Name:
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Xxxxxxx
X. Xxxxx
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Title:
|
Executive
Vice President
|
|
10
