EXHIBIT 10.33
SECOND AMENDED AND RESTATED
MASTER NOTE: REFERENCE RATE RELATED
[N-312(TX)]
CHECK APPROPRIATE BLOCK ________________________________________________________
ACCOUNT (5) CLASS (3) LOAN(5)
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$27,000,000.00 August 15, 1995
FOR VALUE RECEIVED XXXXXXX INTERNATIONAL, INC., formerly known as Xxxxxxx
Graphics Corporation, a Delaware corporation (hereafter referred to as
"Borrower"), promises to pay to the order of BANK OF AMERICA TEXAS, N.A.
("Bank") on April 30, 1998, at Bank's office at 0000 X. Xxxx Xxxxxxxxx Xxxxxxx,
Xxxxxx, Xxxxx 00000-0000, the total unpaid principal amount advanced by Bank
from time to time to or for the benefit of or at the request of Borrower from
and after the date of this Note through April 30, 1998, together with interest
thereon at the times and at the rates specified in this Note.
This Note evidences Xxxxxxxx's obligation to the Bank under the line of
credit and letter of credit facility provided to Borrower by Bank pursuant to
that certain Credit Agreement, dated May 16, 1995, as amended by that certain
First Amendment to Credit Agreement, dated August 15, 1995 (collectively along
with any and all other amendments, modifications and restatements thereof, the
"Credit Agreement"), executed by and between Borrower and Bank, and is entitled
to all the benefits as set forth therein. Capitalized terms used in this Note
and not otherwise defined in this Note shall have the meanings given them in
the Credit Agreement.
No advance shall be made under this Note if, as a result of such advance, the
total principal amount outstanding under this Note, together with the undrawn
face amount of all letters of credit issued and outstanding under the Credit
Agreement would exceed TWENTY-SEVEN MILLION AND NO/100 DOLLARS
($27,000,000.00). All advances and all payments made on account of principal
shall be recorded from time to time by the holder of this Note on the reverse
side of this Note or on an attachment hereto. Each such record of any advance
hereunder shall be conclusive evidence that the advance was made by Bank to
Borrower, unless Borrower objects to such record or accounting within thirty
(30) days after receipt of the same from Bank.
Each advance under this Note shall bear interest from the date of such
advance until payment in full at a rate per year equal to the lesser of (a)
either (i) the Basic Rate, which is equal to
MASTER NOTE--PAGE 1
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the sum of the Bank's Reference Rate plus zero percentage points, or (ii) the
Offshore Rate plus one and one-half (1.5) percentage points, or (b) the Maximum
Rate, all as more fully provided in, and in accordance with the terms of, the
Credit Agreement.
Notwithstanding the foregoing, if at any time the Basic Rate or the Offshore
Rate plus one and one-half (1.5) percentage points, as applicable in accordance
with the terms of the Credit Agreement (each, as applicable, being referred to
as the "Contract Rate") shall exceed the Maximum Rate and thereafter the
Contract Rate shall become less than the Maximum Rate, the rate of interest
payable under this Note shall be the Maximum Rate until the Bank shall have
received the amount of interest it otherwise would have received if the
interest payable hereunder had not been limited by the Maximum Rate during the
period of time the Contract Rate exceeded the Maximum Rate.
The Basic Rate of interest shall be computed on the basis of a three hundred
sixty (360) day year and actual days elapsed, which results in more interest
than if a three hundred sixty-five (365) day year were used.
Accrued interest for borrowings subject to the Basic Rate shall be payable
quarterly, on each June 30, September 30, December 31, and March 31 during the
term hereof, beginning September 30, 1995, and upon payment in full of
principal of this Note.
Accrued interest for borrowings subject to the Offshore Rate shall be
payable, to the extent applicable, on the 90th, 180th, and 270th day of every
interest period and on the last day of each interest period.
Each advance under this Note shall be made in such manner as Bank and
Borrower may agree in writing.
The occurrence of any "Event of Default", as such term is defined in the
Credit Agreement shall, at the option of the holder of this Note, make all sums
of accrued unpaid interest and principal of this Note immediately due and
payable without notice of default, presentment or demand for payment, protest
or notice of nonpayment or dishonor, or other notices or demands of any kind or
character.
If suit is commenced to enforce payment of this Note, Xxxxxxxx agrees to pay
to Bank such additional sums as attorneys' fees as the court may adjudge
reasonable, unless Borrower is the prevailing party, in which event Bank will
be required to pay the Borrower's attorneys' fees.
This Note is a master revolving credit note; it being expressly contemplated
that, by reason of prepayments hereon, there may be times when no indebtedness
is owing hereunder, but, notwithstanding such occurrences, this Note shall
remain valid and shall be in full force and effect as to loans or advances made
subsequent to such occurrences.
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Borrower and any and all sureties, guarantors and endorsers of this Note and
all other parties now or hereafter liable hereon, severally waive grace,
demand, presentment for payment, protest, notice of any kind (including, but
not limited to, notice of dishonor, notice of protest, notice of intention to
accelerate and notice of acceleration) and diligence in collecting and bringing
suit against any party hereto, and agree (i) to all extensions and partial
payments, with or without notice, before or after maturity, (ii) to any
substitution, exchange or release of any security now or hereafter given for
this Note, (iii) to the release of any party primarily or secondarily liable
hereon, and (iv) that it will not be necessary for Bank, in order to enforce
payment of this Note, to first institute or exhaust Xxxxx's remedies against
Borrower or any other party liable therefor or against any security for this
Note.
It is the intention of the parties hereto to comply strictly with applicable
usury laws; accordingly, notwithstanding any provision to the contrary in this
Note or in any of the documents securing the payment hereof or otherwise
relating hereto, in no event shall this Note or such documents require or
permit the payment, charging, taking, reserving, or receiving of any sums
constituting interest under applicable laws which exceed the maximum amount
permitted by such laws. If any such excess interest is contracted for, charged,
taken, reserved, or received in connection with the loan evidenced by this Note
or in any of the documents securing the payment hereof or otherwise relating
hereto, or in any communication by Bank or any other person to Borrower or any
other party liable for payment of this Note, or in the event all or part of the
principal or interest hereof shall be prepaid or accelerated, so that under any
of such circumstances or under any other circumstance whatsoever the amount of
interest contracted for, charged, taken, reserved, or received on the amount of
principal actually outstanding from time to time under this Note shall exceed
the maximum amount of interest permitted by applicable usury laws, then in any
such event it is agreed as follows: (i) the provisions of this paragraph shall
govern and control, (ii) any such excess shall be cancelled automatically to
the extent of such excess, and shall not be collected or collectible, (iii) any
such excess which is or has been received shall be credited against the then
unpaid principal balance hereof or refunded to Borrower, at Bank's option, and
(iv) the effective rate of interest shall be automatically reduced to the
maximum lawful rate allowed under applicable laws as construed by courts having
jurisdiction hereof or thereof. Without limiting the foregoing, all
calculations of the rate of interest contracted for, charged, taken, reserved,
or received in connection herewith which are made for the purpose of
determining whether such rate exceeds the maximum lawful rate shall be made to
the extent permitted by applicable laws by amortizing, prorating, allocating
and spreading during the period of the full term of the loan, including all
prior and subsequent renewals and extensions, all interest at any time
contracted for, charged, taken, reserved, or received. The terms of this
paragraph shall be deemed to be incorporated in every loan document, security
instrument, and communication relating to this note and loan. The term
"applicable usury laws" shall mean such laws of the State of Texas or the laws
of the United States, whichever laws allow the higher rate of interest, as such
laws now exist; provided, however, that if such laws shall hereafter allow
higher rates of interest, then the applicable usury laws shall be the laws
allowing the higher rates, to be effective as of the effective date of such
laws.
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Borrower and Bank agree that Tex. Rev. Civ. Stat. Xxx. art. 5069 Ch. 15
(which regulates certain revolving loan accounts and revolving tri-party
accounts) shall not apply to any revolving loan accounts created under this
Note or maintained in connection therewith.
To the extent that this Note is deemed an open end account as such term is
defined in Article 5069-1.01(f) of the Texas Revised Civil Statutes, as
amended, the Bank retains the right to modify the interest rate in accordance
with applicable law.
Borrower represents and warrants to Bank and to all other owners and holders
of any indebtedness evidenced hereby that all loans evidenced by this Note are
for business, commercial or other similar purpose and not primarily for
personal, family, household or agricultural use, as such terms are used or
defined in Texas Revised Civil Statutes, Article 5069-1.04, Texas Credit Code
and Regulation Z promulgated by the Board of Governors of the Federal Reserve
System and under Titles I and V of the Consumer Credit Protection Act. In no
event shall the provisions of Tex. Rev. Civ. Stat. Xxx. arts. 5069-2.01 through
5069-8.06, or 5069-15.01 through 5069-15.11, be applicable to the loan
evidenced hereby. To the extent that Texas law determines the maximum lawful
rate of interest, such rate shall be determined by utilizing the indicated rate
(weekly) ceiling from time to time in effect pursuant to Tex. Rev. Civ. Stat.
Xxx. art. 5069-1.04, as amended.
THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
This Note is a renewal, amendment, modification, and restatement of that
certain Amended and Restated Master Note, dated May 16, 1995, executed by
Xxxxxxxx and payable to the order of Bank, in the amount of $22,000,000.00,
which was a renewal, amendment, modification and restatement of that certain
Revolving Credit Note dated April 26, 1994 executed by Borrower payable to the
order of Bank One, Milwaukee, National Association ("Bank One"), in the
original principal amount of $20,000,000.00, which was assigned to Bank
pursuant to that certain Master Assignment of Note and Security Documents
executed by Bank One in favor of Bank, dated May 22, 1995.
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IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by
its officers thereunder duly authorized and directed by a resolution of its
Board of Directors duly passed and adopted by a majority of said Board at a
meeting thereof duly called, noticed, and held.
XXXXXXX INTERNATIONAL, INC., Telephone No.: 000-000-0000
formerly known as Xxxxxxx Graphics
Corporation Present Mail Address:
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5500 Airport Freeway
Fort Worth, Texas 76117
Attn: X. Xxxxx XxXxxx
By: /s/ Xxx Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Senior Vice President
--Finance & Admin.
Title:
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