Exhibit 10.31
AMENDED AND RESTATED SUBORDINATED TERM NOTE
$500,000.00 December 28, 1995
(1) For value received, the undersigned, XXXX INDUSTRIES, INC., a
Delaware corporation and ALCORE, INC., a Delaware Corporation (collectively, the
"Makers"), jointly and severally, promise to pay to the order of FLEET NATIONAL
BANK OF CONNECTICUT (f/k/a SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION) (the
"Lender"), at its office at One Corporate Center, Hartford, Connecticut, or at
such other place as the holder hereof (including the Lender, hereinafter
referred to as the "Holder") may designate, the principal sum of FIVE HUNDRED
THOUSAND DOLLARS ($500,000), together with interest on the unpaid balance of
this Note.
(2) This Note is issued pursuant to the Amended and Restated Commercial
Revolving Loan, Term Loan and Security Agreement dated the same date as this
Note, between the Makers and the Lender (as amended, restated, supplemented or
otherwise modified from time-to-time, the "Loan Agreement"), and is entitled to
the benefit and security of the Financing Agreements (as defined therein).
(3) The principal amount of the indebtedness evidenced hereby shall be
payable in accordance with the provisions of the Loan Agreement, and subject to
acceleration upon the occurrence of an Event of Default under the Loan Agreement
or earlier repayment as set forth in the Loan Agreement. If not sooner paid, all
sums outstanding under this Note shall be paid in full on December 27, 2005 (the
"Maturity Date").
(4) Interest shall be computed daily and payable, in arrears, at the
applicable Contract Rate in accordance with the terms of the Loan Agreement, on
the basis of a 360 day year and the actual days elapsed, together with all taxes
levied or assessed against Holder on this Note or the debt evidenced hereby, and
together with all reasonable costs, expenses, attorneys' and professionals' fees
incurred in any action to collect the indebtedness of this Note, to foreclose
any security agreement securing the indebtedness of this Note, or in protecting
or sustaining the lien of any security agreement, or in any litigation or
controversy arising from or connected with this Note or any security agreement
or other agreement securing the indebtedness of this Note.
(5) Makers hereby agree that (a) if they shall fail to make payments
required under this Note within five (5) days of the date when same are due and
Makers do not exercise the Interest Rate Option within such time period or (b)
upon and after the occurrence of an Event of Default, Holder may, without
demand, notice or legal process of any kind, declare this Note to become due and
payable.
(6) This Note is subject to mandatory prepayment and may be voluntarily
prepaid, in whole or in part, on the terms and conditions set forth in the Loan
Agreement.
(7) This Note is subject to the terms and conditions contained in the
Intercreditor and Subordination Agreement between Lender and Gibraltar
Corporation of America dated the date hereof.
(8) Makers agree that upon the occurrence of an Event of Default, after
judgment or the Maturity Date, the indebtedness of this Note shall bear interest
at the Default Rate.
(9) Holder may collect a late charge of 5% of any installment of
principal, interest or other amount due to Holder which is not paid by Maker
within ten (10) days after the due date thereof to cover the extra expense
involved in handling such delinquent payment. The minimum late charge shall be
$15.
(10) Makers give Holder a lien and right of set off for all of Makers'
liabilities upon and against all the deposits, credits, collateral and property
of Makers now or hereafter in the possession or control of Holder, or any parent
or subsidiary corporation or any other entity affiliated with Holder, or in
transit to any of them. Holder may, upon and after the occurrence of an Event of
Default, apply or set off the same, or any part therefor, to any liability of
Makers.
(11) This Note amends and restates in their entirety and is given in
substitution for (but not in satisfaction of) that certain (i) Revolving
Promissory Note dated May 21, 1993 issued by Makers and Norfield Corporation
("Norfield") in favor of Xxxxxx in the original principal amount of $2,500,000
and (ii) Term Promissory Note dated May 21, 1993 issued by Makers and Norfield
in favor of Lender in the original principal amount of $2,000,000.
(12) Makers waive any diligence, presentment, protest and notice of
nonpayment, protest and any renewals or extension of this Note. The failure of
Holder to insist upon the strict performance of Makers of the terms of this Note
shall not be deemed to be a waiver of any term herein, and Xxxxxx shall retain
the right thereafter to insist upon strict performance by Makers of the terms of
this Note.
(13) This Note shall be governed by and construed in accordance with
the laws of the State of Connecticut. Makers consent in advance to the
jurisdiction of the appropriate courts within such state.
(14) Prejudgment Remedy Waiver. MAKERS ACKNOWLEDGE THAT THE
TRANSACTIONS OF WHICH THIS NOTE IS A PART ARE COMMERCIAL TRANSACTIONS AND WAIVE
THEIR RIGHT TO NOTICE AND A HEARING AS PROVIDED BY CHAPTER 903 OF THE
CONNECTICUT GENERAL STATUTES OR UNDER ANY OTHER FEDERAL OR STATE LAW WITH
RESPECT TO ANY PREJUDGMENT REMEDY WHICH HOLDER MAY DESIRE TO USE. MAKERS
ACKNOWLEDGE THAT THEY MAKE THIS WAIVER KNOWINGLY, VOLUNTARILY, WITHOUT DURESS
AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH
THEIR ATTORNEYS.
(15) Jury Trial Waiver. MAKERS WAIVE TRIAL BY JURY IN ANY COURT AND IN
ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN
ANY WAY RELATED TO THE FINANCING TRANSACTIONS TO WHICH THIS NOTE IS A PART OR
THE ENFORCEMENT OF ANY OF HOLDER'S RIGHTS AND REMEDIES. MAKERS ACKNOWLEDGE THAT
THEY MAKE THIS WAIVER KNOWINGLY, VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER
EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIR
ATTORNEYS.
XXXX INDUSTRIES, INC.
[CORPORATE SEAL]
By:_____________________
Xxxx Xxxxxxx, Chairman
and Chief Executive
Officer
ALCORE, INC.
[CORPORATE SEAL]
By:______________________
Xxxx Xxxxxxx, Chairman
and Chief Executive
Officer
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK)
Before me, the undersigned, this ___ day of December, 1995 personally
appeared Xxxx Xxxxxxx, known to me to be the Chairman and Executive Officer of
Xxxx Industries, Inc., and that he as such officer, signer and sealer of the
foregoing instrument, acknowledged the execution of the same to be his free act
and deed individually and as such officer and the free act and deed of the
corporation.
IN WITNESS WHEREOF, I hereunto set my hand.
---------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
Before me, the undersigned, this ___ day of December, 1995 personally
appeared Xxxx Xxxxxxx, known to me to be the Chairman and Chief Executive
Officer of Alcore, Inc., and that he as such officer, signer and sealer of the
foregoing instrument, acknowledged the execution of the same to be his free act
and deed individually and as such officer and the free act and deed of the
corporation.
IN WITNESS WHEREOF, I hereunto set my hand.
---------------------------
Notary Public
