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EXHIBIT 10.1
[FIRST UNION GRAPHIC]
ATLANTA, GEORGIA US $5,000,000.00
JULY 31, 1997
REVOLVING CREDIT NOTE
FOR VALUE RECEIVED, the undersigned, THE ENSTAR GROUP, INC., a Georgia
corporation ("Borrower"), promises to pay to the order of FIRST UNION NATIONAL
BANK, a national banking association, its successors and assigns (hereinafter,
together with all subsequent holders of this Note, called "Bank"), whose address
is 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Portfolio
Management, on or before the Maturity Date (hereinafter defined), the principal
sum of FIVE MILLION AND NO/100 DOLLARS ($5,000,000), or so much thereof as may
actually be advanced hereunder, together with interest on the unpaid principal
balance from time to time outstanding at a rate per annum as set forth herein.
ARTICLE 1. DEFINED TERMS
For purposes hereof:
1.1 "ADJUSTED EURODOLLAR RATE" means shall mean, for any particular
Interest Period, the rate per annum (rounded upwards, if necessary, to the next
higher 1/100 of 1%) equal to the Eurodollar Rate for such Interest Period
divided by, for each day on which Bank is required to maintain reserves in
respect to Eurocurrency Liabilities, that percentage equal to 1 minus the
Eurodollar Reserve Percentage for such Interest Period.
1.2 "APPLICABLE RATE" means the interest rate in effect hereunder from
time to time. In the event that more than one interest rate is in effect at any
one time, each such rate shall be the Applicable Rate with respect to the amount
of this Note for which such rate is in effect.
1.3 "BUSINESS DAY" shall mean (a) a day on which banks are open for the
conduct of banking business in Atlanta, Georgia and (b) if such day relates to a
borrowing of, a payment or prepayment of principal or interest on, a conversion
of or into, or an Interest Period for, a Fixed Rate Portion, or a notice by
Borrower with respect to any such borrowing, payment, prepayment, conversion or
Interest Period, a day which is also a day on which dealings in United States
Dollars are carried out in the London interbank market.
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1.4 "DEFAULT" shall mean the occurrence of any event or condition that
with the passage of time or giving of notice, or both, would constitute an Event
of Default.
1.5 "EFFECTIVE DATE" shall mean, the date designated in any Fixed Rate
Request as the date that a Portion covered thereby shall begin to bear interest
at a rate set forth in Section 2.2(a)(i) hereof. The Effective Date specified in
such Fixed Rate Request shall be the first day of the Interest Period applicable
to the Fixed Rate Portion so requested.
1.6 "EVENT OF DEFAULT" shall have the meaning assigned to the term in
Section 4.1 hereof.
1.7 "EURODOLLAR RATE" shall mean, for any Interest Period for any
Fixed Rate Portion, the average rate per annum (determined solely by the Bank
and rounded upwards, if necessary, to the next higher 1/100 of 1%) at which
deposits in United States Dollars are offered to Bank by brokers in the London
interbank market at 11:00 a.m. (London time) two Business Days before the first
day of such Interest Period in an amount equal to the Fixed Rate Portion so
requested and for a period equal to such Interest Period.
1.8 "EURODOLLAR RESERVE PERCENTAGE" shall mean, for any Interest
Period, the maximum reserve requirement percentage (expressed as a decimal),
including any supplemental, marginal or emergency reserves as in effect from
time to time, imposed by the Board of Governors of the Federal Reserve System
(or any successor) on liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to the Interest Period selected,
and in an amount at least equal to the outstanding loan balance accruing
interest at the "Adjusted Eurodollar Rate," but subject to any changes in such
reserve requirement becoming effective during the Interest Period.
1.9 "EUROCURRENCY LIABILITIES" shall have the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System, as
such regulation may be in effect from time to time.
1.10 "FIXED RATE" shall mean the rate of interest applicable to a Fixed
Rate Portion.
1.11 "FIXED RATE PORTION" shall mean all or any portion of the Loan
designated by Borrower to bear interest at the rate set forth in Section
2.2(a)(i) hereof.
1.12 "FIXED RATE REQUEST" shall mean the request of Borrower made
pursuant to Section 2.3 hereof to have all or any portion of the outstanding
Loan bear interest at the rate set forth in Section 2.2(a)(i) hereof.
1.13 "INTEREST PERIOD" means a period of seven, thirty, sixty or ninety
days as selected by Xxxxxxxx; provided however, in no event shall any Interest
Period extend beyond the Maturity Date.
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1.14 "LOAN" means the loan advanced under this Note and evidenced
hereby and by the other Loan Documents (hereinafter defined).
1.15 "LOAN DOCUMENTS" means the Stock Pledge Agreement, this Note, the
Financing Agreements (as defined in the Stock Pledge Agreement), and all other
documents, agreements and instruments executed or delivered in connection
herewith or therewith.
1.16 "MATURITY DATE" means July 30, 1998, or such earlier date on which
this Note shall become due by acceleration by Bank, by prepayment notice from
Borrower, or otherwise.
1.17 "OBLIGATIONS" shall mean the Loan and any and all other
indebtedness, liabilities and obligations of Borrower to Bank or its affiliates
of every kind and nature (including, without limitation, interest, charges,
expenses, attorneys' fees and other sums chargeable to Borrower by Bank or its
affiliates, all indemnification obligations and all future advances made to or
for the benefit of Borrower), whether arising under this Note, the other Loan
Documents, or under any other financing arrangement entered into by Borrower and
Bank or its affiliates prior to the date hereof or after the date hereof,
whether arising by reason of an extension of credit, opening of a letter of
credit, loan, lease, credit card arrangement, guaranty, indemnification or in
any other manner, direct or indirect, absolute or contingent, primary or
secondary, due or to become due, now existing or hereafter acquired.
1.18 "PERSON" shall mean and include any individual, sole
proprietorship, partnership, joint venture, trust, unincorporated organization,
association, corporation, body corporate and politic, institution, entity, party
or government (whether national, federal, state, county, city, municipal, or
otherwise, including, without limitation, any instrumentality, public
corporation, division, agency, body or department thereof).
1.19 "PORTION" shall mean either a Fixed Rate Portion or a Prime Rate
Portion, as the context may require.
1.20 "PRIME RATE PORTION" shall mean all or any portion of the
outstanding Loan, which Borrower has not designated to bear interest at the rate
set forth in Section 2.2(a)(i) hereof.
1.21 "PRIME RATE" shall mean the rate announced from time to time by
Bank as the prime rate of Bank. The Prime Rate is one of several interest rate
bases used by Bank, and Bank makes loans both above and below the Prime Rate.
1.22 "REGULATORY CHANGE" shall mean the adoption on or after the date
hereof of any applicable federal, state, or foreign law, rule or regulation or
any change after such date in any such federal, state or foreign law, rule or
regulation (including, without limitation, Regulation D of the Board of
Governors of the Federal Reserve System), or any adoption or change in the
interpretation or administration thereof by any court, governmental authority,
central bank or comparable agency or monetary authority charged with the
interpretation or
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administration thereof, or compliance by Bank with any request or directive made
after such date (whether or not having the force of law) of any such court,
authority, central bank or comparable agency or monetary authority.
1.23 "STOCK PLEDGE AGREEMENT" means the Amended and Restated Stock
Pledge Agreement dated even date herewith between Borrower and Bank, as amended,
modified, supplemented or restated from time to time.
ARTICLE 2. INTEREST
2.1 CALCULATION OF INTEREST. Interest based on a 360-day year will be
accrued on the number of days that funds are actually outstanding, and shall be
calculated on a daily basis.
2.2 INTEREST RATE. (a) The outstanding principal amount of the Loan
shall bear interest, calculated daily on the basis of the 360-day year and
actual days elapsed, from the date thereof until paid in full at the following
rates:
(i) the outstanding principal amount of each Fixed Rate Portion
shall bear interest at a fixed rate of interest equal to the
Adjusted Eurodollar Rate, plus six tenths of one percentage point
(.60%);
(ii) the outstanding principal amount of each Prime Rate Portion
shall bear interest at a fluctuating rate per annum equal to the
Prime Rate; and
(iii) the principal amount of any payment which is not made when
due (whether at its stated maturity or by reason of acceleration)
shall bear interest at the Default Rate.
The Loan shall initially bear interest as a Fixed Rate Loan for an Interest
Period of 90 days and Borrower shall not be required to submit a Fixed Rate
Request for such initial Interest Period. The interest rate in effect on the
date hereof is ____________% per annum.
(b) Accrued interest shall be payable: (i) in the case of Prime
Rate Portions, monthly on the first day of each month hereafter for the previous
month, commencing September 1, 1997; (ii) in the case of a Fixed Rate Portion,
on the last day of the Interest Period therefor (provided, however, for any 60
day Interest Period, accrued and unpaid interest shall also be payable in full
on the 30th day of such Interest Period and, for any 90 day Interest Period,
accrued and unpaid interest shall also be payable in full on the 30th and 60th
days of such Interest Period); (iii) in the case of any Portion, upon the
payment or prepayment of all or any such Portion of the Loan included therein or
the conversion of such Portion to a Portion of another type (but only on the
principal amount so paid, prepaid or
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converted),and (iv) in the case of any Portion, interest payable at the Default
Rate shall be payable from time to time on demand.
2.3 FIXED RATE REQUESTS. Borrower may request that all or any portion
of the outstanding Loan bear interest at the rate set forth in Section 2.2(a)(i)
for a specified Interest Period by delivering to the Bank a Fixed Rate Request,
not later than 10:00 a.m. Atlanta, Georgia time, at least three (3) Business
Days prior to the Effective Date of the change to such rate. Each Fixed Rate
Request shall either be oral, with prompt written confirmation, or in writing,
with such written confirmation or writing to be substantially in the form of
Exhibit A attached hereto; shall be irrevocable; shall be effective upon receipt
by Bank; and shall specify: (a) the amount of such Fixed Rate Portion (which
shall be not less than $500,000 and shall be an integral multiple of $100,000);
(b) whether such Fixed Rate Request will effect a continuation of a Fixed Rate
Portion currently outstanding; (c) the Effective Date of the Interest Period
with respect to such Fixed Rate Portion (which shall be a Business Day and, if
such Fixed Rate Portion is a continuation of a Fixed Rate Portion then
outstanding, shall not be prior to the last day of the then-applicable Interest
Period for such outstanding Fixed Rate Portion); and (d) the length of the
Interest Period.
2.4 INTEREST PERIOD. The Interest Period for any Fixed Rate Portion
shall commence on the Effective Date of such Fixed Rate Portion as specified in
the Fixed Rate Request applicable thereto and shall continue for the applicable
Interest Period specified in such Fixed Rate Request. If any Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall be extended to the next Business Day, unless the result of such extension
would be to extend such Interest Period into the calendar month following the
calendar month in which it would otherwise terminate, in which event such
Interest Period shall end on the immediately preceding Business Day.
2.5 LIMITATION ON INTEREST PERIODS; PORTIONS. Borrower may not select
any Interest Period with respect to the Loan which begins before and ends after
Maturity Date. The Borrower shall not have outstanding at any one time more than
five (5) Fixed Rate Portions.
2.6 PREPAYMENT FEES. Borrower shall have the right to prepay any Fixed
Rate Portion or Prime Rate Portion at any time provided:
(i) Borrower has, at least 10 days prior to the date of such
prepayment, advised the Bank in writing of Xxxxxxxx's intention to make such
prepayment. This advice of prepayment shall set forth the amount of the
prepayment and the date upon which such prepayment will be made; and
(ii) Borrower pays to Bank, at the time of such prepayment,
such amount as Bank has, prior to the prepayment date, advised Borrower, in
writing, is the amount of the "Bank's loss" due to such prepayment.
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As used in this Section 2.6, the term "Bank's loss" shall mean Bank's
continued interest costs on the amount of principal prepaid until the expiration
of the term of such prepaid Fixed Rate Portion, plus the unamortized portion of
any fees paid by Bank for the funds used in said Interest Period for such Fixed
Rate Portion, less the amount Bank could earn if the prepaid amount were to be
invested by Bank in United States Treasury Bills for a comparable period. The
determination of ""Bank's loss" and such other costs, fees and penalties due
Bank hereunder shall be made by Bank in good faith using such methodology as
Bank deems appropriate and customary under the circumstances and shall be
conclusive absent manifest error. The provisions of this paragraph shall apply
with respect to any Fixed Rate Portion prepaid by Borrower prior to the last day
of the applicable Interest Period as a result of the acceleration by Bank of the
outstanding principal balance hereof.
2.7 ILLEGALITY. Notwithstanding any other provision of this Agreement,
in the event that it shall become unlawful for Bank to obtain funds in the
London interbank market or for Bank to maintain a Fixed Rate Portion, then Bank
shall promptly notify Borrower whereupon (a) the right of Borrower to request a
Fixed Rate Portion shall thereupon terminate, and (b) any Fixed Rate Portion
then outstanding shall commence to bear interest at the rate applicable to Prime
Rate Portions or at such other rate as Bank and Borrower may agree upon on the
last day of the then-applicable Interest Period or at such earlier time as may
be required by law.
2.8 INDEMNITY. Xxxxxxxx agrees to indemnify Bank and to hold it
harmless from any loss or expense which it may sustain or incur as a consequence
of failure by Borrower to consummate any Fixed Rate Request, including, without
limitation, any such loss or expense arising from interest or fees payable by
Bank to Banks of funds obtained by it in order to maintain any Fixed Rate
Portion. Bank shall promptly notify Borrower of any amount payable by Borrower
to Bank pursuant to this Section 2.8 hereof and a certificate of Bank, setting
forth in reasonable detail the computation of the amounts specified, shall be
conclusive, absent manifest error, as to the amounts owed.
2.9 INABILITY TO DETERMINE FIXED RATE. In the event that Bank
determines (which determination shall be conclusive) that, by reason of
circumstances affecting the London interbank market, quotation of interest rates
for the relevant deposits referred to in the definitions of the "Eurodollar
Rate" herein are not being provided in the relevant amounts or for the relevant
maturities for the purpose of determining a rate of interest for any Fixed Rate
Portion, then Bank shall promptly notify Borrower whereupon the right of
Borrower to request a Fixed Rate Portion shall thereupon be suspended until such
time as Bank again can determine a rate of interest for Fixed Rate Portions.
2.10 EXPIRATION OF INTEREST PERIOD. Upon the expiration of the Interest
Period for any Fixed Rate Portion, unless Bank has received from Borrower a new
Fixed Rate Request with respect thereto, such Fixed Rate Portion shall be
converted automatically to a Prime Rate Portion.
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2.11 INCREASED COSTS/CAPITAL ADEQUACY. The Borrower agrees that if: (a)
after the date hereof, Bank shall have determined that the adoption of any
applicable law, rule or reegulation or any change therein, or any change in the
interpretation or administration thereof by any court or any administrative or
governmental authority or central bank or comparable agency charged with
interpretation or administration thereof (or compliance by Bank with any request
or directive of any such court, authority or central bank (whether or not having
the force of law)), shall either impose, affect, modify or deem applicable any
reserve, special deposit, capital maintenance or similar requirement against the
Loan or the participation of Bank therein or impose on Bank any other condition
regarding the Loan, or (b) after the date, Bank shall have determined that the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any court or any administrative or governmental authority or central
bank or comparable agency charged with the interpretation or administration
thereof (or compliance by Bank with any request or directive regarding capital
adequacy (whether or not having the force of law)) of any such authority,
central bank or comparable agency, relating generically to loans of the category
applicable to the Loan, or (c) there shall occur any change after the date in
the basis of taxation of payments to Bank of any amount owing to the Bank
hereunder (except for a change in the rate of taxation on the overall net income
of Bank), and the result of any event referred to in subsection (a), (b) or (c)
above shall be to increase the cost to Bank of making or maintaining the Loan or
to reduce the rate of return on capital with respect to the Loan to a level
below that which the Loan could have achieved but for such adoption, change or
compliance (and, with respect to capital adequacy, taking into consideration
Bank's internal policies with respect thereto), then, within 30 days of demand
by Bank (which shall be made within 180 days of the occurrence of any such event
referred to in clause (a), (b) and (c) above), Borrower shall pay to Bank
additional amounts which shall be sufficient to compensate Bank for such
increased cost, tax or reduced rate of return, together with interest on such
amount from the date fifteen days after the date Borrower receives the
statement(s) referred to in the next sentence to the date Borrower pays such
increased cost, tax or reduced rate of return in full at the Prime Rate. At the
request of Borrower, Bank shall deliver to Borrower a statement setting forth
the basis for requesting such compensation and the method for determining the
amount thereof. Any such statement shall be conclusive as to the amounts of
increased cost in funding or maintaining the Loan absent manifest error.
2.12 LATE FEES.If any payment of principal or interest under the Loan
is made more than fifteen (15) days after the due date thereof, Borrower shall
pay to Bank a late payment fee of the lesser of (a) five percent (5%) of the
overdue amount or (b) $1,750; provided, however, that the acceptance of such a
fee by Bank shall not be construed as or deemed to be a waiver of any Default or
Event of Default under the Loan Agreement or any other Loan Document.
ARTICLE 3. REVOLVING LOANS, PAYMENT AND PREPAYMENT
3.1 REVOLVING LOANS. So long as no Default or Event of Default has
occurred and is continuing hereunder, and during the period from the date hereof
through the day prior to the Maturity Date, Bank, by its acceptance hereof, but
subject to the limitations set forth in the
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Stock Pledge Agreement, shall make advances to Borrower hereunder from time to
time, as requested by Xxxxxxxx, in amounts up to $5,000,000 outstanding at any
one time. Subject to the limitations and conditions set forth herein, Bank
agrees, by its acceptance hereof, that Borrower may borrow, repay principal
borrowed and reborrow principal repaid under this Note up to such principal
amount. Borrower shall submit requests for advances hereunder in accordance with
Bank's reasonable and customary requirements from time to time.
3.2 PAYMENT.
(a) Interest shall be payable in amounts and on the dates set
forth in Article 2 hereof.
(b) The outstanding principal balance hereunder and all
accrued and unpaid interest hereunder shall be due and payable in full
on the Maturity Date.
(c) Whenever any payment due hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (except as otherwise
provided in Section 2.4 hereof) and, with respect to payments of
principal, interest thereon shall continue to accrue and shall be
payable at the applicable rate during such extension.
3.3 PLACE OF PAYMENT. All payments hereunder shall be made to
Bank at Bank's address set forth in the first paragraph on page 1 of this Note,
or at such other address as Bank may from time to time designate in writing to
Borrower. All amounts payable hereunder are payable in lawful money of the
United States of America.
3.4 APPLICATION OF PAYMENTS. Prior to the occurrence of an Event
of Default, all payments on this Note shall be applied first to the payment of
accrued but unpaid interest, and any remainder shall be applied to reduction of
the principal balance hereof. Bank's books and records shall be presumed correct
as to the sums outstanding hereunder 45 days after Xxxxxxxx has been provided
any statement of Loan balances and payments and has failed to object to the same
within such period, except in the case of manifest error. After the occurrence
of an Event of Default, payments on this Note shall be applied to interest,
principal, costs of collection and any other amounts payable hereunder or under
the Stock Pledge Agreement as Bank may in its sole and absolute discretion
direct.
3.5 COSTS OF COLLECTION. Xxxxxxxx agrees to pay all costs of
collection hereof when incurred, including reasonable attorneys' fees actually
incurred, whether or not any legal action shall be instituted to enforce this
Note.
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3.6 PREPAYMENT.
(a) Subject to Section 2.6 hereof, Borrower shall have the
right to prepay this Note in whole at any time or in part from time to
time without premium or penalty.
(b) If any such prepayment is only a partial payment of the
then outstanding principal balance hereof, such prepayment shall be
accompanied by the payment of all accrued but unpaid interest on the
portion of the outstanding principal balance of the Note being so paid
through the date the prepayment is made. For same day credit all monies
shall be received by Bank at Bank's address as set forth in Section 3.2
hereof, at or before 2:00 p.m., Eastern Standard Time or Eastern
Daylight Time (as applicable); all monies received after such time
shall be deemed received on the following Business Day and the
outstanding principal shall continue to accrue interest at the
Applicable Rate to the date funds are deemed received. No partial
prepayment shall affect the obligation of Borrower to make any payment
of principal or interest due hereunder on the date set forth in this
Note, until this Note has been paid in full.
(c) Borrower shall have the right to prepay any Fixed Rate
Portion only upon payment to Bank, at the time of such prepayment, of
an amount equal to the "Bank's loss" (as determined pursuant to Section
2.6 hereof).
ARTICLE 4. DEFAULT AND REMEDIES
4.1 EVENTS OF DEFAULT. Each of the following events shall
constitute an "Event of Default":
(a) If Borrower shall fail, refuse or neglect to pay, in full,
any installment or portion of the indebtedness evidenced hereby within
5 days of the date the same shall become due and payable, whether at
the due date thereof stipulated herein, or at a date fixed for
prepayment, or by acceleration or otherwise.
(b) The occurrence of any "default" or "event of default"
under (and as defined in) any other Loan Document.
(c) If Borrower should default in the payment or performance
of any other Obligation and fail to cure the same within 15 days after
notice from Bank of such default.
(d) Borrower shall (i) make an assignment for the benefit of
its creditors; (ii) admit in writing its inability to pay its debts
when they become due; (iii) file or have filed against it a petition or
any other pleading instituting a case under any bankruptcy, insolvency,
reorganization, arrangement, or other debtor relief law, and, in the
case of any involuntary proceeding, the same is not discharged or
dismissed within 45 days of
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the filing thereof; (iv) appoint or consent to the appointment of a
receiver, conservator, liquidating agent, or committee; or (v) take any
action for the purpose of effecting any of the foregoing.
(e) Borrower shall provide any representation, warranty or
information to Bank (i) that is materially false when made or provided
or (ii) that becomes materially false as a continuing representation or
warranty or as continuing information.
(f) Borrower shall fail to comply with or perform any
covenant, provision, term or condition of any Loan Document and shall
fail to cure the same within any applicable cure period provided for
therein (or if no such cure period is so provided, within 15 days of
the occurrence thereof).
(g) Any judgment, writ of execution, attachment or garnishment
or any judgment lien, or any other legal process, be issued for an
amount in excess of $500,000 against Borrower or any of its property,
unless the same shall have been dismissed, bonded over or stayed within
30 days of the issuance of the same.
(h) Borrower shall (i) default (as principal of or guarantor
or other surety) in the payment of any principal of, or premium, if
any, or interest on, or other payment with respect to any indebtedness
or (ii) default with respect to any of the terms of any of such
indebtedness or of any agreement relating thereto, and such default or
event of default gives the holder of the obligation (x) the right to
accelerate such indebtedness (whether or not such holder has, in fact,
accelerated such indebtedness), or (y) the right to take action with
respect to any collateral therefor.
(i) A notice of lien, xxxx or assessment is filed of record
with respect to all or any of any Borrower's assets by the United
States, or any department, agency or instrumentality thereof, or by any
state, county, municipal or other governmental agency which adversely
affects the priority of the liens and security interests granted to
Bank under the Loan Documents.
(j) (i) If any Person (or two or more Persons acting in
concert), other than Xxxxxx X. Xxxxxx, shall acquire "beneficial
ownership" within the meaning of Rule 13d-3 of the Securities and
Exchange Act of 1934, as amended, directly or indirectly, capital stock
or securities of Borrower representing 25% or more of the aggregate
voting power of all classes of capital stock and securities of Borrower
entitled to vote for the election of directors or (ii) during any
twelve-month period (commencing both before and after the date hereof),
individuals who at the beginning of such period were directors of
Borrower shall cease for any reason (other than death or mental or
physical disability) to constitute a majority of the board of directors
of Borrower.
4.2 DEFAULT RATE. Upon the occurrence and during the continuance
of an Event of Default, at Bank's option after written notice to Borrower, the
Applicable Rate shall become
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the Prime Rate plus two percent (2%) per annum (the "Default Rate"). This
Section shall not be deemed to be a waiver of Bank's right to accelerate payment
of this Note under the terms hereof.
4.3 ACCELERATION; OTHER REMEDIES. Upon the occurrence or
existence of any Event of Default, and during the continuation thereof, without
prejudice to the rights of Bank to enforce its claims against Borrower for
damages for failure by Borrower to fulfill any of the obligations hereunder,
Bank shall have the following rights and remedies, in addition to any other
rights and remedies available to Bank at law, in equity or otherwise:
(a) In the event of the occurrence of (i) an Event of Default
set forth in Section 4.1(d) hereof, the Loan shall automatically and immediately
terminate and the Obligations shall automatically and immediately become due and
payable; and (ii) any other Event of Default, Bank, at its option, may terminate
the Loan and declare all of the Obligations to be immediately due and payable,
whereupon all of the Obligations shall become immediately due and payable, in
either case without presentment, demand, protest, notice of non-payment or any
other notice required by law relative thereto, all of which are hereby expressly
waived by Borrower, anything contained herein to the contrary notwithstanding
and, in connection therewith, the Obligations shall, automatically and without
notice to Borrower, commence to bear interest, until paid in full, at the
Default Rate.
(b) The right to set-off, without notice to Borrower, any and
all deposits at any time credited by or due from Bank to Borrower, whether in a
general or special, time or demand, final or provisional account or any other
account or represented by a certificate of deposit and whether or not unmatured
or contingent. Bank shall promptly give Borrower notice of any such action.
(c) All of the rights and remedies of a secured party under
the Uniform Commercial Code as in effect in Georgia from time to time or under
other applicable law, all of which rights and remedies shall be cumulative, and
none of which shall be exclusive, to the extent permitted by law, in addition to
any other rights and remedies contained in this Note, and in any of the other
Loan Documents.
(d) The right to sell or to otherwise dispose of all or any of
the collateral for the Obligations in accordance with the Stock Pledge Agreement
and applicable law. The proceeds realized from the sale of any collateral shall
be applied first to the costs, expenses and attorneys' fees and expenses
incurred by Bank for collection and for acquisition, completion, protection,
removal, storage, sale and delivery of the collateral; second to interest due
upon any of the Obligations; and third to the principal of the Obligations. Any
surplus shall be paid to Xxxxxxxx. If any deficiency shall arise, Borrower shall
remain liable to Bank therefor.
(f) Any notice required to be given by Bank of a sale, lease,
other disposition of any collateral for the Obligations or any other intended
action by Bank, given to Borrower
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in the manner set forth in Section 5.4 below, at least ten (10) days prior to
such proposed action, shall constitute commercially reasonable and fair notice
thereof to Borrower.
4.4 NO WAIVER. Failure to exercise any of the foregoing options
shall not constitute a waiver of the right to exercise the same or any other
option at any subsequent time in respect to any other event. The acceptance by
Bank of any payment hereunder that is less than payment in full of all amounts
due and payable at the time of such payment shall not constitute a waiver of the
right to exercise any of the foregoing options at that time or at any subsequent
time or nullify any prior exercise of any such option without the express
written consent of Bank.
ARTICLE 5. MISCELLANEOUS
5.1 WAIVERS.
(a) Except as otherwise specifically provided in the Loan
Documents, Borrower and any endorsers or guarantors hereof jointly and
severally waive presentment and demand for payment, notice of intent to
accelerate maturity, notice of acceleration of maturity, protest or
notice of protest and nonpayment, bringing of suit and diligence in
taking any action to collect any sums owing hereunder or in proceeding
against any of the rights and properties securing payment hereof.
Borrower and any endorsers or guarantors hereof agree that the time for
any payments hereunder may be extended from time to time without notice
and consent to the acceptance of further security or the release of any
existing security for this Note, all without in any manner affecting
their liability under or with respect to this Note. No extension of
time for the payment of this Note or any installment hereof shall
affect the liability of Borrower under this Note even though Borrower
is not a party to such agreement.
(b) Borrower hereby waives and renounces, to the extent same
may be waived and renounced, for itself, its legal representatives,
successors and assigns, all rights to the benefits of any moratorium,
reinstatement, marshaling, forbearance, valuation, stay, extension,
redemption, appraisement, exemption and homestead now provided or which
may hereafter be provided by the Constitution and the laws of the
United States and of any state, both as to itself and in and to all of
its property, real and personal, against the enforcement and collection
of the obligations evidenced by this Note.
5.2 LOAN DOCUMENTS. This Note is issued pursuant to the Loan
Documents and is secured, inter alia, by the Stock Pledge Agreement. All of the
agreements, conditions, covenants, warranties, representations, provisions and
stipulations made by or imposed upon Borrower under the other Loan Documents are
hereby made a part of this Note to the same extent and with the same force and
effect as if they were fully inserted herein, and Borrower
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covenants and agrees to keep and perform the same, or cause them to be kept and
performed, strictly in accordance with their terms.
5.3 BORROWER. The term "Borrower" as used in this Note shall mean and
have reference to, collectively, all parties and each of them directly or
indirectly obligated for the indebtedness evidenced by this Note, whether as
principal, maker, endorser, guarantor, or otherwise, together with the
respective heirs, administrators, executors, legal representatives, successors
and assigns of each of the foregoing.
5.4 NOTICE. All notices or other communications required or permitted
to be given pursuant to this Note shall be in writing and shall be considered
properly given if mailed by first-class United States mail, postage prepaid,
registered or certified with return receipt requested, or by delivering same in
person to the intended addressee, or by prepaid telegram, telex or facsimile
transmission. Notice so mailed shall be effective three (3) days after its
deposit. Notice may be given in any other manner, but such notice shall be
effective only if and when received by the addressee. For purposes of notice,
the address and facsimile number of Borrower shall be the address and facsimile
number listed on the final page of this Note, and Bank's address shall be 000
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Portfolio Management (for
notice delivered by personal delivery or telegram), and P.O. Box 740074, Mail
Code 9030, Atlanta, Georgia 30374 (for notice delivered by registered or
certified mail), and Bank's facsimile number shall be (000) 000-0000; provided,
however, that either party shall have the right to change its address for notice
hereunder to any other location within the continental United States by the
giving of written notice to the other party in the manner set forth hereinabove.
5.5 GOVERNING LAW. This Note shall be governed by and construed
according to the laws of the State of Georgia, except that United States federal
law shall govern to the extent that it permits Bank to contract for, charge or
receive a greater amount of interest, and giving effect to all other United
States federal laws applicable to national banks. It is expressly stipulated and
agreed to be the intent of Borrower and Bank at all times to comply with the
applicable law now or hereafter governing the interest payable on this Note or
the Loan. If the applicable law is ever revised, repealed, or judicially
interpreted so as to render usurious any amount called for under this Note, or
under any of the other Loan Documents, or contracted for, charged, taken,
reserved or received with respect to the Loan, or if Bank's exercise of the
option herein contained to accelerate the maturity of this Note, or if any
prepayment by Borrower results in Borrower's having paid any interest in excess
of that permitted by applicable law, then it is Borrower's and Bank's express
intent that all excess amounts theretofore collected by Bank be credited on the
principal balance of this Note (or, if the Note has been paid in full, refunded
to Borrower), and the provisions of this Note and the other Loan Documents
immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any new
documents, so as to comply with the then applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder and thereunder.
All sums paid or agreed to be paid to Bank for the use, forbearance or detention
of the indebtedness evidenced hereby and
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by the other Loan Documents shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of such
indebtedness until payment in full so that the rate or amount of interest on
account of such indebtedness does not exceed the usury ceiling from time to time
in effect and applicable to the Loan for so long as debt is outstanding under
the Loan.
5.6 SEVERABILITY. Whenever possible, each provision of this Note shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited by or invalid under such
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Note.
5.7 TIME OF THE ESSENCE. XXXXXXXX AGREES THAT TIME IS OF THE ESSENCE IN
THE PERFORMANCE OF ALL OBLIGATIONS HEREUNDER.
5.8 CONSENT TO JURISDICTION. BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR GEORGIA STATE COURT
SITTING IN ATLANTA, GEORGIA OF ANY CLAIM, DEMAND, PROCEEDING, ACTION OR CAUSE OF
ACTION (A) ARISING UNDER THIS NOTE, ANY OTHER LOAN DOCUMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
OR THEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF BORROWER AND BANK WITH RESPECT TO THIS NOTE, ANY OTHER LOAN DOCUMENT
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE. BORROWER ACKNOWLEDGES AND AGREES THAT THE WITHIN
CONSENT AND WAIVER ARE MATERIAL INDUCEMENTS TO BANK TO MAKE THE LOAN. XXXXXXXX
HEREBY AGREES THAT SERVICE OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS
WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY COURT IN OR
OF THE STATE OF GEORGIA MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH
PROCESS TO BORROWER IN ACCORDANCE WITH SECTION 5.4 HEREOF.
5.9 USE OF PROCEEDS. The Borrower shall use the proceeds of the Loan
solely to repurchase shares of its outstanding capital stock and to pay
Borrower's costs incurred in connection with the transaction.
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IN WITNESS WHEREOF, this Note has been duly executed under seal in
Atlanta, Georgia on the date first above written.
BORROWER:
THE ENSTAR GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title: Chairman, Pres. & CEO
-----------------------------
[SEAL]
Xxxxxxxx's Address:
000 Xxxxxxxx Xxxxxx - 3rd Floor
-----------------------------------
Montgomery, Alabama 36104
-----------------------------------
Borrower's Tax ID Number:
00-0000000
-----------------------------------
Xxxxxxxx's facsimile number:
334/834-2530
-----------------------------------
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EXHIBIT A
Fixed Rate Request
First Union National Bank
000 Xxxxxxxxx Xxxxxx, X.X.
Atlanta, Georgia 30309
Attn: _________________
Re: Promissory Note dated July __, 1997 (the "Note") from The
Enstar Group, Inc. (the "Borrower"), and First Union National
Bank ("Bank")
Gentlemen:
This Fixed Rate Request is delivered in accordance with Section 2.3 of
the Note. Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Note.
Borrower hereby [irrevocably requests] [confirms its irrevocable oral
request] for the following Fixed Rate Portion:
1. Amount of Fixed Rate Portion of Loan: $
[$500,000 MINIMUM; $100,000 MULTIPLES]
2. Effective Date: , 19
3. Such Portion [check one] is is not a continuation of
----- -----
a previous Fixed Rate Portion.
4. The Interest Period is ___ [7, 30, 60 or 90] days.
The Borrower hereby confirms to the Bank that as of the date hereof, no Event of
Default has occurred and is continuing, nor has there occurred any event or
condition that with the passage of time or giving of notice, or both, would
constitute an Event of Default.
Very truly yours,
THE ENSTAR GROUP, INC.
By:
------------------------
Title:
---------------------
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