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EXHIBIT 10.95
CREDIT NOTE
$3,870,000 Cleveland, Ohio
January 12, 1999
FOR VALUE RECEIVED, the undersigned jointly and severally promise to
pay to the order of FINOVA CAPITAL CORPORATION ("Lender") on April 12, 1999 (the
"Maturity Date") the principal amount of THREE MILLION EIGHT HUNDRED SEVENTY
THOUSAND DOLLARS ($3,870,000) or such lesser amount as shall have been borrowed
by the undersigned from Lender from time to time pursuant to the provisions of a
certain Restated Loan And Security Agreement dated December 1, 1997 entered into
by and between Toledo Pickling & Steel Sales, Inc., Lender, National Bank of
Canada, in its capacity as agent thereunder (together with its successors and
assigns, the "Agent") and each of the other Lenders (as therein defined) a party
thereto (the "Loan Agreement"), as determined by the ledgers and records of
Lender, as accurately maintained to reflect the borrowings and payments under
the Loan Agreement, with interest on the unpaid principal balance from time to
time outstanding at a rate per annum equal to three and one-quarter (3-1/4)
percentage points above the "Base Rate" (as defined below) for commercial loans
in effect from time to time. Prior to the Maturity Date, Interest shall be
payable monthly commencing January 31, 1999, and continuing on the last day of
each month thereafter until the entire principal amount has been repaid in full.
Any increase or decrease in the interest rate resulting from a change in the
Base Rate shall become effective on the date of such change. Interest shall be
computed on a 360-day year basis based on the actual number of days elapsed.
The term "Base Rate" as used herein shall mean the rate of interest
announced publicly by the Agent from time to time as its prime rate or its
corporate base rate for loans in the United States or such other designation
which may replace such prime rate or corporate base rate, which rate may not be
the lowest or best rate offered by such bank.
Payment of the principal of, and interest on, this Credit Note (the
"Note") shall be made in lawful money of the United States of America to Lender
at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 or at such
other place as the holder has designated to the undersigned in writing.
This Note is one of the "Credit Notes" referred to in the Loan
Agreement and evidences the assumption by TPSS Acquisition Corporation of joint
and several liability with Toledo Pickling & Steel Sales, Inc. ("Current
Debtor") for the obligations of Current Debtor to Lender pursuant to an
Assumption and Consent Agreement dated of even date herewith (the "Assumption
Agreement"). This Note is secured by, among other things, the security interests
and liens described in the Loan Agreement. Reference is hereby made to the Loan
Agreement and the Assumption Agreement for a statement of the rights and
obligations of Lender and the duties and obligations of the undersigned in
relation thereto, but neither this reference to the Loan Agreement and the
Assumption Agreement nor any provision thereof shall affect or impair the
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absolute and the unconditional joint and several obligation of the undersigned
to pay the principal of, and interest on, this Note on the Maturity Date or
otherwise when due and payable.
This Note has been issued pursuant to the Loan Agreement, together with
the other Credit Notes as evidence of the undersigned's joint and several
liability for the obligations under that certain Demand Note dated May 4, 1989
in the original principal amount of Sixteen Million Dollars ($16,000,000) issued
to Bank of New England, N.A., the predecessor-in-interest to the Agent, by
Toledo Pickling & Steel Sales, Inc. (as amended to date, including amendments
set forth in the Assumption Agreement, the "Original Note"). It is understood
and acknowledged by the undersigned that this Note is not intended as a novation
of the obligations under the Original Note but is merely evidence of the
assumption by TPSS Acquisition Corporation of such obligations pursuant to the
Assumption Agreement.
Notwithstanding anything to the contrary in the Credit Documents (as
defined in the Assumption Agreement) or the Assumption Agreement, the
undersigned agree that in the event all of the Obligations owed to Lenders under
the Credit Notes are not paid in full on or before the Maturity Date, the
undersigned will be jointly and severally obligated to pay to Agent, for the
benefit of the Lenders, a fee of $2,000 for each calendar day after the Maturity
Date that any Obligations remain unpaid (the "Loan Continuation Fee") and, until
paid, the entire amount of the Loan Continuation Fee shall be an additional
Obligation under the Credit Documents secured by the Collateral.
Upon the nonpayment or partial payment of any payment of principal
and/or accrued interest due and owing under this Note, or any other obligation
due and owing to Lender, all or any portion of the principal and interest due or
to become due under this Note shall become at once due and payable at the option
of the holder without notice, demand, presentment, or dishonor, which the
undersigned hereby waive.
The undersigned hereby irrevocably waive all right to trial by jury in
any action, proceeding, or counterclaim arising out of or relating to this Note
and agree to pay upon default the costs of collection including, without
limitation, reasonable attorneys' fees.
No delay or omission on the part of the holder in exercising any rights
hereunder shall operate as a waiver of such right or of any other right of such
holder, nor shall any delay, omission, or waiver on any one occasion be deemed a
bar to, or waiver of, the same or any other right on any future occasion. The
undersigned and every endorser of this Note, regardless of the time, order, or
place of signing, waive presentment, protest, and notice of every kind and
assent to any one or more extensions or postponements of the time of payment or
any other indulgences, to any substitutions, exchanges, or releases of
collateral for this Note, and to additions or releases of any other parties or
persons primarily or secondarily liable hereunder.
Each of the undersigned authorizes any attorney-at-law to (a) appear
before any court of record, state or Federal, in the county of the State of Ohio
in which this Note was executed or in any other State of the United States of
America after the unpaid principal of this Note becomes due, (b) waive the
issuance and service of process, (c) admit the maturity of the Note, (d) enter
an appearance and confess judgment against either or both of the undersigned in
favor of Lender for the amount then appearing due, together with interest
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thereon and costs of suit (including reasonable attorney fees), and (e)
thereupon to release all errors and waive all rights of appeal and stay of
execution. No such judgment against the undersigned based upon one or more
matured obligations shall be a bar to a subsequent judgment or judgments
pursuant to this warrant of attorney against the undersigned based upon
subsequently matured obligations of the undersigned. The foregoing warrant of
attorney shall survive any judgment, it being understood that should any
judgment be vacated for any reason, the foregoing warrant of attorney
nevertheless may thereafter be used for obtaining an additional judgment or
judgments.
This Note is being executed and delivered in Cleveland, Ohio.
WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
TPSS ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Title: President
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WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
TOLEDO PICKING & STEEL SALES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Title: President
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