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SUBSTITUTED NOTE
$159,783 Kankakee, Illinois
August 4, 1994
For value received, the undersigned ("Borrower") promises to pay to the
order of Xxxxx & Xxxxxxx, Inc. at 75 Tonawanda Street, Buffalo, New York or at
such other place as may be designated from time to time by the holder, the sum
of One Hundred Fifty-Nine Thousand Seven Hundred Eighty-Three Dollars ($159,783)
together with interest thereon at a rate equal to five and six-tenths percent
(5.6%) per annum, in lawful money of the United States of America, payable in
eleven (11) installments as follows: (i) one (1) installment of principal in an
amount equal to the Profit Portion Dividend for 1994 due to the undersigned as
provided in Section 6.01(b) and Schedule 6.01(b) of the Agreement and Plan of
Merger dated February 25, 1994 by and among Xxxxx & Xxxxxxx, Inc., United
Coatings, Inc. and certain shareholders of United Coatings, Inc. to be paid
within five (5) days after payment of such Profit Portion Dividend; (ii) nine
(9) installments of interest only commencing on November 4, 1994 and payable on
the 4th day of each calendar quarter thereafter to and including November 4,
1996, and (iii) one (1) final installment in an amount equal to the entire then
unpaid principal balance of this Substituted Note together with all unpaid
interest thereon payable on February 4, 1997.
If any installment of this Substituted Note is not paid when due,
whether because such installment becomes due on a Saturday, Sunday or holiday or
for any other reason, Borrower will pay interest thereon at the aforesaid rate
until the date of actual receipt of such installment by the holder of this
Substituted Note.
This Substituted Note is secured by the collateral described in that
certain Pledge Agreement, of even date herewith, executed and delivered by
Borrower to Xxxxx & Xxxxxxx Inc. (the "Pledge Agreement"). All principal and
interest under this Substituted Note will become immediately due and payable
upon the occurrence of any "Event of Default" as defined in the Pledge
Agreement.
Borrower shall have the right to prepay all or a portion of the
principal indebtedness under this Substituted Note, together with interest on
the principal so prepaid to the date of such prepayment, without penalty or
premium.
No failure by the holder hereof to exercise, and no delay in
exercising, any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise by the holder of any right or power
hereunder preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the holder as herein specified
are cumulative and not exclusive of any other rights or remedies which the
holder may otherwise have.
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No modification, rescission, waiver, release or amendment of any
provision of this Substituted Note shall be made except by a written agreement
subscribed by Borrower and the holder hereof.
Borrower hereby waives diligence, presentment, protest and demand, and
also notice of protest, demand, dishonor and nonpayment of this Substituted
Note.
Xxxxxxxx agrees to pay all costs and expenses incurred by the holder in
enforcing this Substituted Note or in collecting the indebtedness evidenced
hereby, including, without limitation, if the holder retains counsel for any
such purpose, actual attorneys' fees and expenses.
This Substituted Note is in substitution and renewal of, but not
payment of, a Promissory Note and Pledge Agreement dated January 1, 1990 between
Borrower and United Coatings, Inc., which Promissory Note and Pledge Agreement
shall be deemed cancelled upon delivery hereby of Borrower.
This Substituted Note shall be governed, construed and enforced in
accordance with the internal laws of the State of New York without regard to
principles of conflict of laws.
/s/ XXX X. XXXXX
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Borrower: Xxx X. Xxxxx
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