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EXHIBIT 10.19
PROMISSORY NOTE & LOAN AGREEMENT
Dated As Of
$1,600,000 May 15, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
1. LOAN; ADVANCEMENT OF FUNDS. Subject to receipt of the funds
to be advanced to it hereunder, SAF-T-HAMMER CORPORATION, a Nevada corporation
(the "Company"), hereby promises to pay to the order of ▇▇▇▇▇ & WESSON
CORPORATION, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
("Registered Holder"), or at such other place as it shall designate to the
Company in writing, in lawful money of the United States of America, the
principal amount of One Million Six Hundred Thousand Dollars ($1,600,000) and to
pay interest (computed on the basis of a 365-day year and the actual number of
days elapsed) on the unpaid principal amount hereof at the Interest Rate (as
defined below). The Company promises to pay the said principal sum and interest
in accordance with the terms of this Note (the "Note"). The Registered Holder
agrees to advance to the Company One Million Six Hundred Thousand Dollars
($1,600,000) (the "Funds") on May 15, 2001. The date of receipt by the Company
or pursuant to its direction of the Funds shall be the "Advancement Date."
2. ISSUANCE OF NOTE. This Note and the related documents have
been issued by the Company pursuant to the authorization of the Board of
Directors of the Company. The Note, together with any notes from time to time
issued in replacement thereof, whether pursuant to transfer and assignment or
otherwise, are collectively referred to herein as the "Note."
3. PAYMENT. Interest shall be payable on or before the 15th
day of each month beginning June 15th and be computed at the rate of the Prime
Rate (as defined below) plus one (1) percent per annum (the "Interest Rate") on
the outstanding principal balance of this Note for the period from the
Advancement Date until the date of such principal is fully repaid (the
"Repayment Date"). Unless earlier repaid, on May 15, 2002 (the "Termination
Date"), the Company shall pay the Registered Holder all unpaid principal and
interest on this Note. The Company may prepay this Note, in whole or in part, at
any time. "Actual Interest Amount" shall mean the amount of interest computed at
the Interest Rate on the outstanding balance of the Note, from time to time, for
the period from the Advancement Date through the Repayment Date. The "Repayment
Date" shall mean the date the outstanding balance of this Note is fully repaid.
The Interest Rate shall automatically increase to fifteen percent (15%) per
annum without notice or act by any party upon an Event of Default (as defined
below). The "Prime Rate" shall be the prime rate of interest announced in
Phoenix, Arizona, by Citibank N.A., or its successor.
4. SECURITY AGREEMENT. This Note is secured pursuant to the
terms of that certain Security Agreement between the Registered Holder and the
Company, dated concurrently with this Note (the "Security Agreement"). The
collateral pursuant to the Security Agreement shall be referred to as the
"Collateral."
5. REPRESENTATIONS AND COVENANTS OF THE COMPANY. The Company
represents, warrants and covenants the following:
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(a) As of the date of this Note, the Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Nevada and the Company has all requisite corporate power and authority
to carry on its business as presently conducted, and to carry out the
transactions contemplated in this Note and the other agreements contemplated
herein. The Company has duly authorized and executed this Note and shall duly
authorize and execute any related documents required to be delivered by the
Company hereafter.
(b) The Company shall not make any material change in the
business of the Company nor any change in the principal place of business of the
Company.
(c) Except for any security interests held by the Registered
Holder, the Company has fee simple title to the Collateral free from any lien,
security interest, encumbrance or claim ("Lien").
(d) The Company will, at the Company's expense, keep the
Collateral free from any other Liens and defend and hold the Registered Holder
harmless from any action, which may adversely affect the Registered Holder's
security interest or the Company's title to the Collateral.
(e) The Company will execute and/or deliver to the Registered
Holder all documents the Registered Holder reasonably considers necessary or
convenient to perfect and maintain Registered Holder's security interest in the
Collateral and its proceeds, including, but not limited to, uniform commercial
code financing statements. The Registered Holder may file or record in the
appropriate public offices in all jurisdictions in which the Collateral may be
located and all such documents required or permitted by law to be filed or
recorded.
(f) Without the prior written consent of ▇▇▇▇▇ & Wesson, the
Company agrees that the Company shall not cause itself, nor permit itself to:
(i) convey, sell, lease or sub-lease (as lessor or
sublessor), transfer or otherwise dispose of, or ▇▇▇▇▇ ▇ ▇▇▇▇ over, in one
transaction or a series of transactions, all or any part of its business, assets
or property of any kind whatsoever, whether real, personal or mixed and whether
tangible, intangible or contingent, whether now owned or hereafter acquired
until the Note has been repaid;
(ii) liquidate, wind-up or dissolve itself, or suffer
any liquidation or dissolution of, in one transaction or a series of
transactions, all or any part of its business, assets or property of any kind
whatsoever, whether real, personal or mixed and whether tangible, intangible or
contingent, whether now owned or hereafter acquired, until the Note has been
repaid; and
(g) The Company will pay before delinquency all taxes,
governmental charges, assessments or liens now or hereafter imposed on the
Collateral;
6. NEGATIVE COVENANTS OF THE COMPANY. The Company shall not,
without the prior written consent of ▇▇▇▇▇ & Wesson:
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(a) Sell, lease or transfer any portion of the Collateral;
(b) Guaranty the Indebtedness of any third party;
(c) Make any capital expenditure in excess of $500,000;
7. EVENTS OF DEFAULT. The following shall each constitute an
"Event of Default" by the Company under this Note:
(a) default in the due and punctual payment of interest upon
or principal of the Note as and when the same becomes due and payable either at
maturity or otherwise; or
(b) with respect to any other covenant or agreement contained
in the Note, failure on the part of the Company to duly observe or perform
covenants or agreements; which failure then remains uncured for a period of
fifteen (15) days after notice from the party claiming the default; or
(c) a decree or order by a court having jurisdiction has been
entered adjudging the Company as bankrupt or insolvent, or approving a petition
seeking reorganization of the Company under any applicable bankruptcy law and
such decree or order has continued undischarged or unstayed for a period of
sixty (60) days; or a decree or order of a court having jurisdiction for the
appointment of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of all or substantially all of its property, or for
the winding-up or liquidation of its affairs, has been entered, and has remained
in force undischarged or unstayed for a period of thirty (30) days; or
(d) the Company institutes proceedings to be adjudicated a
voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against
it, or files a petition or answer or consent seeking reorganization under
applicable law, or consents to the filing of any such petition or to the
appointment of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of it or of all or substantially all of its property, or makes an
assignment for the benefit of creditors, or admits in writing its inability to
pay its debts generally as they become due; or if the Company shall suffer any
writ of attachment or execution or any similar process to be issued or levied
against it or any significant part of its property which is not released,
stayed, bonded or vacated within sixty (60) days after its issue or levy; or if
the Company takes corporate action in furtherance of any of the aforesaid
purposes or conditions; or
(e) any declared default of the Company under any Indebtedness
that gives the holder the right to accelerate such Indebtedness, which
Indebtedness is not cured within fifteen (15) days after any applicable grace or
cure periods and which is in excess of $200,000; or
(f) any material adverse change in the business, operations,
assets, liabilities or financial condition of the Company which is not cured
within fifteen (15) days after the Registered Holder has provided the Company
with written notice thereof; or
(g) the adoption of any plan of liquidation, dissolution or
winding up of the Company, or the involuntary occurrence thereof.
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Unless the principal of the Note has already become due and payable, upon an
Event of Default, unless such Event of Default has already been remedied, the
Registered Holder by notice in writing to the Company, may declare the principal
of the Note then outstanding and the interest accrued thereof, if not already
due and payable and if not already paid, to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due and
payable.
8. TRANSFERABILITY. This Note is not transferable, in whole or
in part without the prior written consent of the Company (in its reasonable
discretion), except that the Registered Holder may, upon thirty (30) days prior
written notice to the Company but without the prior written consent of the
Company, assign all but not less than all of this Note to an entity as to which
the Registered Holder is the beneficial owner of a least a majority of the
equity therein and the Registered Holder has voting control thereover (a
"Permitted Transferee").
9. REMEDIES CUMULATIVE. The rights, powers and remedies given
to the payee under this Note shall be in addition to all rights, powers and
remedies given to it by virtue of any document or instrument executed in
connection herewith, or any statute or rule of law.
10. NON-WAIVER. Any forbearance, failure or delay by the payee
in exercising any right, power or remedy under this Note, any documents or
instruments executed in connection therewith or otherwise available to the payee
shall not be deemed to be a waiver of such right, power or remedy, nor shall any
single or partial exercise of any right, power or remedy preclude the further
exercise thereof.
11. MODIFICATIONS AND WAIVERS. No modification or waiver of
any provision of this Note or any documents or instruments executed in
connection therewith is effective unless it is in writing and signed by the
payee, and any such modification or waiver shall apply only in the specific
instance for which given.
12. ATTORNEY'S FEES. If this Note shall not be paid when due
and shall be placed by the Registered Holder hereof in the hands of an attorney
for collection, through legal proceedings or otherwise, or in the event the
Registered Holder fails to perform as required hereby and an action is brought
by the non-breaching party with respect thereto, the breaching party shall pay
attorney's fees to the non-breaching party hereof, together with reasonable
costs and expenses of collection or enforcement incurred in connection with any
such action.
13. ENFORCEMENT; SPECIFIC PERFORMANCE.
(a) In case any one or more Events of Default of the Company
or in the event of a breach or default by the Registered Holder hereunder shall
occur and be continuing, in addition to the Registered Holder's rights and
remedies under the Security Agreement, the non-breaching party may proceed to
protect and enforce the rights of such non-breaching party by an action at law,
suit in equity or other appropriate proceeding, whether for the specific
performance of any agreement contained herein or for an injunction against a
violation of any of the terms hereof or thereof, or in aid of the exercise of
any power granted hereby or thereby or by law.
(b) The parties hereto expressly agree that they may not have
adequate remedies at law if the parties do not perform their obligations under
this Note. Upon a breach of the terms or covenants of this Note by either party,
the other party shall, each in addition to all
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other remedies, be entitled to obtain injunctive relief, and an order for
specific performance of the obligations hereunder.
14. CHOICE OF LAW. This Note and the rights and obligations of
the parties hereto, shall be governed, construed and interpreted according to
the laws of the State of Massachusetts. The Company agrees that any final
judgment after exhaustion of all appeals or the expiration of time to appeal in
any such action or proceeding shall be conclusive and binding, and may be
enforced in any federal or state court in the United States by suit on the
judgment or in any other manner provided by law. Nothing contained in this Note
shall affect or limit the right of the Registered Holder to serve any process or
notice or motion or other application in any other manner permitted by law, or
limit or affect the right of the Registered Holder to bring any action or
proceeding against the Company or any of its property in the courts of any other
jurisdiction. The Company hereby consents to the jurisdiction of the federal
courts whose districts encompass any part of the City of Springfield,
Massachusetts or the state courts of the State of Massachusetts sitting in the
City of Springfield in connection with any dispute arising under this Note, and
hereby waives, to the maximum extent permitted by law, any objection, including
any objections based on forum non conveniens, to the bringing of any such
proceeding in such jurisdictions.
15. WRITTEN CONSENT OF ▇▇▇▇▇ & WESSON NOT NECESSARY UNDER
CERTAIN CIRCUMSTANCES. Notwithstanding anything else contained herein to the
contrary, the prior written consent of ▇▇▇▇▇ & Wesson shall not be required with
respect to the matters described in Sections 5 and 6 of this Note if, after the
Company gives ▇▇▇▇▇ & Wesson written notice of the proposed matter (which notice
shall summarize the proposed transaction), ten (10) business days elapse without
the Company receiving a written notice from ▇▇▇▇▇ & Wesson stating that it is
withholding such consent.
16. PAYEE DEFINED. The term "payee" as used herein shall be
deemed to include the payee and its successors, endorsees and assigns.
17. WAIVER OF PRESENTMENT, ETC. The Company hereby waives
presentment, demand for payment, protest, notice of protest and notice of
non-payment hereof.
18. CONSTRUCTION. The terms of this Note constitute the
written expression of the mutual agreement of the parties and shall be construed
neutrally and not for or against either party. Whenever a noun or pronoun is
used in this Note in the singular and when required by the context, the same
shall include the plural, and the masculine gender shall include the feminine
and neuter genders and vice versa. The term "person" shall include any
individual, entity, trust or association. The headings in this Note are inserted
for convenience; the provisions of this Note shall control in determining the
intent hereof.
19. HOLIDAYS. If this Note or any installment hereof becomes
due and payable on a Saturday, Sunday or public holiday under the laws of the
State of Arizona, the due date hereof shall be extended to the next succeeding
business day and interest shall be payable at the Interest Rate during such
extension. All payments received by the Registered Holder shall be applied first
to the payment of all accrued interest payable hereunder.
20. NOTICES. Except as otherwise expressly provided for
herein, all notices, requests and other communications to any party hereunder
shall be in writing (including
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facsimile or similar writing) and shall be given to such party at its address or
facsimile number set forth below, or such other address or facsimile number as
such party may hereinafter specify for the purpose (in the case of the Company,
by notice in accordance herewith to the Registered Holder or, in the case of the
Registered Holder, by notice in accordance herewith to the Company). Each such
notice, request or other communication shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this SECTION 20 or, (ii) if given by mail, 48 hours after such communication
is deposited in the mails with first class postage prepaid, addressed as
aforesaid or, (iii) if given by any other means, when delivered at the address
specified in this SECTION 20. Notices shall be addressed as follows:
If to the Company:
Saf-T-Hammer Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, CEO
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Registered Holder:
▇▇▇▇▇ & Wesson
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇, CFO
If a notice or communication is delivered in the manner
provided above, it is duly given, whether or not the addressee receives it.
IN WITNESS WHEREOF, the parties have caused this Promissory
Note & Loan Agreement to be effective as of the date first written above.
SAF-T-HAMMER CORPORATION, a Nevada
corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: CEO
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Agreed to and accepted by:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ & Wesson Corporation,
a Delaware corporation
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