Exhibit 10.09
EXHIBIT A
---------
NOTE
----
$14,000,000 October 30, 2006
FOR VALUE RECEIVED, the undersigned (the "Borrower"), HEREBY
PROMISES TO PAY to the order of Steel Partners II, L.P. (the "Lender"), on or
before the Maturity Date (as such term is defined in the Loan Agreement), the
principal sum of Fourteen Million and No/100 Dollars ($14,000,000.00) in
accordance with the terms and provisions of that certain Loan Agreement dated as
of October 30, 2006 by and between the Borrower and the Lender (as same may be
amended, modified, increased, supplemented and/or restated from time to time,
the "Loan Agreement"; capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Loan Agreement).
The outstanding principal balance of this Note, together with
all accrued and unpaid interest thereon, shall be due and payable on the
Maturity Date. The Borrower promises to pay interest on the unpaid principal
balance of this Note from the Issue Date until the principal balance thereof is
paid in full. Interest shall accrue on the outstanding principal balance of this
Note from and including the Issue Date to but not including the Maturity Date at
the rate or rates, and shall be due and payable on the dates and paid in
accordance with the terms and conditions, set forth in the Loan Agreement.
Payments of principal, and all amounts due with respect to
costs and expenses pursuant to the Loan Agreement, shall be made in lawful money
of the United States of America in immediately available funds, without
deduction, set-off or counterclaim to the Lender to the account maintained by
the Lender not later than 11:59 a.m. (New York time) on the dates on which such
payments shall become due pursuant to the terms and provisions set forth in the
Loan Agreement. Payments of interest (other than those due on the Maturity Date,
which shall be paid in accordance with the terms of the immediately preceding
sentence) shall be payable in kind through the issuance of additional notes,
substantially in the form hereof, in the aggregate principal amount equal to
such amount of interest that would otherwise be payable and shall mature on the
Maturity Date. The Obligations of the Borrower under this Note and any
additional note issued hereunder are secured in accordance with the terms of the
Pledge and Security Agreement.
If any payment of principal or interest on this Note shall
become due on a day that is not a Business Day, such payment shall be made on
the next succeeding Business Day and such extension of time shall in such case
be included in computing interest in connection with such payment.
1 of 2
This Note is the Note provided for in, and is entitled to the
benefits of the Loan Agreement, which Loan Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events, for prepayments on account of principal hereof prior
to the maturity hereof upon the terms and conditions and with the effect therein
specified, and provisions to the effect that no provision of the Loan Agreement
or this Note shall require the payment or permit the collection of interest in
excess of the Highest Lawful Rate.
The Borrower and any and all endorsers, guarantors and
sureties severally waive grace, demand, presentment for payment, notice of
dishonor or default, protest, notice of protest, notice of intent to accelerate,
notice of acceleration and diligence in collecting and bringing of suit against
any party hereto, and agree to all renewals, extensions or partial payments
hereon and to any release or substitution of security hereof, in whole or in
part, with or without notice, before or after maturity.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WHOLLY WITHIN SUCH STATE.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
duly executed and delivered effective as of the date first above written.
BNS HOLDING, INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: President and CEO
2 of 2
