EXHIBIT: 10(b)
REVOLVING NOTE
$500,000.00 Florence, Alabama
May 9, 2002
FOR VALUE RECEIVED, the undersigned Xxxxxx Industries, Inc., a
Delaware corporation (the "Borrower"), promises to pay to the order of M-TIN,
LLC, an Alabama limited liability company (the "Lender" or, together with any
other holder of this Note, the "Holder"), at the office of the Lender at such
place as the Holder may designate, the principal sum of Five Hundred Thousand
and No/100 Dollars ($500,000.00) or the aggregate unpaid principal amount of all
advances made to Borrower by Xxxxxx, in legal tender of the United States of
America and immediately available funds at the place payment is due. Interest,
payable as provided below, shall accrue daily on the unpaid balance of said sum
from the date hereof until the earlier of the date repaid or maturity of this
Note at a per annum rate of twelve percent (12.0%). Interest shall be calculated
on the basis of a 360-day year and the actual number of days elapsed.
Xxxxxxxx promises to pay accrued interest on the unpaid amount
of the principal sum of this Note on the 5th day of each month, commencing June
5, 2002 and at maturity. On October 5, 2002, the outstanding principal balance
of this Note, together with all accrued but unpaid interest thereon, and all
other sums owing under this Note which remain unpaid shall be due and payable;
provided, that, Borrower shall have the option to extend the maturity date of
this Note for six (6) months by giving notice to the Lender of such election not
later than September 5, 2002 and paying an extension fee equal to five percent
(5.0%) of the outstanding principal amount of the Note as of the original
maturity date, which fee shall be due and payable on the original maturity date.
If any scheduled payment hereunder is in default ten (10) days
or more, Xxxxxxxx agrees to pay a late charge equal to five percent (5%) of the
amount of the payment which is in default, but not less than $.50 or greater
than the maximum amount permitted by law.
If any payment of principal or interest on this Note shall
become due on a Saturday, Sunday or any day on which the Holder of this Note is
legally closed to business, such payment shall be made on the next succeeding
business day, and interest shall continue to accrue on the entire unpaid balance
of the principal sum of this Note until such payment is received by the Holder.
Time is of the essence with respect to the payment of every
installment of principal and of interest hereunder and the performance of every
other covenant made by the Borrower under this Note, the Mortgage (as
hereinafter defined) and under any other agreement which secures the payment of
this Note.
The Borrower may prepay the principal sum of this Note in full
or in part only upon payment of a prepayment premium on the principal amount
prepaid calculated by multiplying the amount prepaid by three percent (3.0%).
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This Note is the note referred to in, and is entitled to the
security of that certain Real Estate Mortgage, Security Agreement and Financing
Statement (the "Mortgage") on certain real property located in Colbert,
Lauderdale and Limestone Counties, Alabama (the "Property") of even date
herewith, executed and delivered to the Lender by Xxxxxxxx.
The occurrence of any one or more of the following events
shall constitute an Event of Default under this Note:
(a) If the Borrower fails to pay any installment of principal or
interest under this Note on the date the same is due and such
failure shall continue for ten (10) days after written notice
thereof is given to Borrower; or
(b) If the Borrower breaches or fails to perform any covenant or
warranty made by the Borrower in the Mortgage or any other
instrument or agreement executed by the Borrower in connection
herewith and such failure shall continue for thirty (30) days
after written notice thereof is given to Borrower; or
(c) If the Borrower fails to observe or perform any other
covenant, condition or agreement under this Note or the
Mortgage, or is otherwise in default under any of such
documents, or if there shall occur any other default or Event
of Default hereunder or thereunder or any condition or event
which with the giving of notice or the passage of time, or
both, would constitute such a default or Event of Default; or
(d)(i) If a petition in bankruptcy is filed by or against Borrower,
or a receiver or trustee of any of the property of Xxxxxxxx is
appointed; or (ii) if Borrower files a petition or an answer seeking
reorganization under any of the provisions of the bankruptcy law or of
any other law, state or federal, or to take advantage of any
bankruptcy, reorganization, insolvency, readjustment of debt,
dissolution, or liquidation law or statute, or admitting the material
allegations of a petition filed against it in any proceeding under any
such law; or (iii) if Borrower shall take any corporate, partnership or
other action for the purpose of effecting any of the foregoing, or
enters into or consents to an arrangement with creditors, or makes an
assignment for the benefit of creditors, or is adjudged insolvent by
any state or federal court of competent jurisdiction; or (iv) if
Borrower admits in writing its inability to pay its debts as they
mature; or (v) if an order, judgment or decree shall be entered without
the application, approval or consent of the debtor by any court of
competent jurisdiction, approving a petition seeking reorganization of
Borrower or of all or a substantial part of the properties or assets of
Borrower, or appointing or ordering a receiver, trustee, or liquidation
of Borrower; provided, however, that Borrower shall have sixty (60)
days to have dismissed of record any involuntary petition filed against
it; or
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(e) If any financial statement, warranty, representation or
certificate made or furnished by the Borrower in or pursuant
to the Mortgage or otherwise in connection with the
indebtedness evidenced hereby should be materially false,
incorrect, or incomplete when made; or
(f) Except as may be provided in the Mortgage, if the Borrower
sells, conveys or encumbers its interest in all or any portion
of the Property without the prior written consent of the
Lender, which consent may be withheld in the Lender's sole
discretion; or
(g) The Borrower shall sell, or enter into an agreement to sell,
all or substantially all of its assets; or
(h) The Borrower shall sell a sufficient amount of its capital
stock (whether by tender offer, original issuance, or a single
or series of related stock purchase and sale agreements and/or
transactions) sufficient to confer on the purchaser or
purchasers thereof (whether individually or in a group) the
ability to elect a majority of the Board of Directors of the
Borrower, or is party to a merger, consolidation or
combination, other than any merger, consolidation or
combination that would result in the holders of the voting
securities of the Borrower outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity) more than 50% of the combined voting
power of the voting securities of the Borrower (or such
surviving entity) outstanding immediately after such merger,
consolidation or combination; or
(i) If any action whatsoever shall be taken, or if there shall be
any occurrence which could or does have the effect of,
terminating, dissolving or winding-up the business of the
Borrower.
If any one or more of the foregoing Events of Default shall occur, the entire
unpaid principal balance of this Note, together with accrued but unpaid interest
thereon, at the option of the Holder of this Note, shall be and become due and
payable immediately, and the Holder of this Note may proceed to exercise any
remedy available to it at law or in equity.
The Borrower hereby waives demand, presentment, dishonor,
notice of dishonor and any other requirement necessary to hold the Borrower
obligated hereon. The Borrower hereby agrees that the obligations evidenced by
this Note may, from time to time, in whole or in part, be released or modified
without notice to, or reservation of rights against, any guarantor, and that any
collateral now or hereafter held for the obligations of the Borrower under this
Note may hereafter be released, compromised, or exchanged, and that the Holder
may fail to perfect its lien or security interest in such collateral or may
permit the perfection of its lien or security interest in such collateral to
lapse, all without in any way affecting or releasing the liability of the
Borrower under this Note.
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The Borrower agrees to pay all intangibles taxes, documentary
stamp taxes, recording fees or taxes and other taxes and fees due to any
governmental authority in connection with the execution and delivery of this
Note, the Mortgage, or any other agreement which provides collateral for this
Note. The Borrower agrees to pay all costs and expenses, including reasonable
attorneys' fees, incurred by the Holder of this Note in collecting or attempting
to collect this Note after the occurrence of an Event of Default.
The Holder shall not by any act, delay, omission or otherwise
be deemed to have waived any of its rights or remedies under the Note, under any
agreement which provides collateral for this Note, or under applicable law. The
Holder may accept late payments and/or partial payments under this Note without
waiving or otherwise impairing its right to require strict conformance to the
terms hereof. All rights and remedies of the Holder under this Note, under any
such agreement providing collateral for this Note, and under applicable law
shall be cumulative and may be exercised successively or concurrently. This Note
shall be governed by and construed in accordance with the laws of the United
States and of the State of Alabama. Any provision of this Note which shall be
deemed to be unenforceable or invalid under any such law shall be ineffective to
the extent of such unenforceability or invalidity without affecting the
enforceability or validity of any other provision hereof.
Notwithstanding any provision of this Note or the Mortgage to
the contrary, the parties intend that no provision of this Note or the Mortgage
be interpreted, construed, applied or enforced so as to permit or require the
payment or collection of interest, whether before or after maturity of this
Note, in excess of the maximum rate permitted by the law applicable to this
transaction (the "Maximum Permitted Rate"). If, however, any such provision is
so interpreted, construed, applied or enforced, then the parties intend: (i)
that such provision automatically shall be reformed nunc pro tunc so as to
require payment only of interest at the Maximum Permitted Rate, and (ii) if the
Holder of this Note has received interest payments in excess of such Maximum
Permitted Rate, that the amount of such excess be credited nunc pro tunc in
reduction of the principal amount of this obligation, together with interest at
such Maximum Permitted Rate.
BORROWER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY
CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING OUT
OF OR IN ANY WAY PERTAINING OR RELATING TO THIS NOTE, THE MORTGAGE, OR ANY OTHER
INSTRUMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS NOTE, OR
(ii) IN ANY WAY CONNECTED WITH OR PERTAINING OR RELATED TO OR INCIDENTAL TO ANY
DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS NOTE, THE MORTGAGE, OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH OR IN CONNECTION WITH THE TRANSACTIONS RELATED HERETO OR CONTEMPLATED
HEREBY OR THE EXERCISE OF EITHER PARTY'S RIGHTS AND REMEDIES HEREUNDER, IN ALL
OF THE FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE BORROWER AGREES THAT XXXXXX MAY
FILE A COPY OF THIS
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NOTE WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED
FOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT
ANY DISPUTE OR CONTROVERSY OF ANY KIND WHATSOEVER BETWEEN THEM SHALL INSTEAD BE
TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
IN WITNESS WHEREOF, the undersigned has caused this Note to be
executed by its officer thereunto duly authorized on the date first above
written with the intention that this Note shall constitute a sealed instrument.
XXXXXX INDUSTRIES, INC.
By: /s/ X. X. Xxxxxx
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Its: Vice President & Chief Financial Officer
[SEAL] Federal Tax ID Number: 00-0000000
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