COMMERCIAL VARIABLE RATE REVOLVING OR DRAW NOTE
BORROWER
AMERICAN CONSUMERS, INC.
SHOP RITE SUPERMARKETS
XXXXXX ADDRESS
Northwest Georgia Bank 000 XXXXXX XXXXXX
POST OFFICE BOX 0000 XXXX XXXXXXXXXX, XX 00000
FT OGLETHORPE, GA 30742 Telephone No. Identification No.
(000) 000-0000 (000) 000-0000 00-0000000
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OFFICER INTEREST PRINCIPAL FUNDING/ MATURITY DATE CUSTOMER NUMBER LOAN NUMBER
IDENTIFICATION RATE AMOUNT/ AGREEMENT DATE 06/01/02 00-0000000 N-02-722707-52
KSF:39 VARIABLE CREDIT LIMIT 06/01/01
$650,000.00
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LJS CN/134 CAT/1 PURP/W CT/307 REV/2 USER #2206
PROMISE TO PAY: For value received, Borrower promises to pay to the order of
Lender the principal amount of Six Hundred Fifty Thousand and no/ 100 Dollars
($650,000.00) or, if less, the aggregate unpaid principal amount of all loans or
advances made by the Lender to the Borrower under this Note, plus interest on
the unpaid principal balance at the rate and in the manner described below,
until all amounts owing under this Note are paid in full. All amounts received
by Xxxxxx shall be applied first to late charges and expenses, accrued unpaid
interest, then to unpaid principal, or in any other order as determined by
Xxxxxx, in Xxxxxx's sole discretion, as permitted by law.
REVOLVING OR DRAW FEATURE: [X] This Note possesses a revolving feature. Upon
satisfaction of the conditions set forth in this Note, Borrower shall be
entitled to borrow up to the full principal amount of the Note and to repay and
reborrow from time to time during the term of this Note. [_] This Note possesses
a draw feature. Upon satisfaction of the conditions set forth in this Note,
Borrower shall be entitled to draw one or more times under this Note. Any
repayment may not be reborrowed. The aggregate amount of such draws shall not
exceed the full principal amount of this Note.
Information with regard to any loans or advances under this Note shall be
recorded and maintained by Xxxxxx in its internal records and such records shall
be conclusive of the principal and interest owed by Borrower under this Note
unless there is a material error in such records. The Lender's failure to record
the date and amount of any loan or advance shall not limit or otherwise affect
the obligations of the Borrower under this Note to repay the principal amount of
the loans or advances together with all interest accruing thereon. Borrower
shall be entitled to inspect or obtain a copy of the records during Xxxxxx's
business hours.
CONDITIONS FOR ADVANCES: If no Event of Default has occurred under this Note,
Borrower shall be entitled to borrow monies under this Note (subject to the
limitations described above) under the following conditions:
UPON AUTHORIZATION OF LENDER.
INTEREST RATE: This Note has a variable rate feature. The interest rate on this
Note may change from time to time if the Index Rate identified below changes.
Interest shall be computed on the basis of the actual number of days over 360
days per year. Interest on this Note shall be calculated and payable at a
variable rate equal to 0.500% per annum over the Index Rate. The initial
interest rate on this Note shall be 7.500% per annum. Any change in the interest
rate resulting from a change in the Index Rate will be effective on:
THE FIRST DAY OF EACH MONTH.
INDEX RATE: The Index Rate for this Note shall be:
WALL STREET JOURNAL PRIME RATE AS PUBLISHED BY THE WALL STREET JOURNAL.
If the Index Rate is redefined or becomes unavailable, then Lender may select
another index rate which is substantially similar.
DEFAULT RATE: If there is an Event of Default under this Note, the Lender may,
in its discretion, increase the interest rate on this Note to: 16.00% or the
maximum interest rate Lender is permitted to charge by law, whichever is less.
PAYMENT SCHEDULE: Borrower shall pay the principal and interest according to the
following schedule:
Interest only payments beginning September 01, 2001 and continuing at
quarterly time intervals thereafter. A final payment of the unpaid
principal balance plus accrued interest is due and payable on June 01,
2002.
PREPAYMENT: This Note may be prepaid in part or in full on or before its
maturity date. If this Note contains more than one installment, any partial
prepayment will not affect the due date or the amount of any subsequent
installment, unless agreed to, in writing, by Xxxxxxxx and Lender. If this Note
is prepaid in full, there will be:
[X] No minimum finance charge.
[_] A minimum finance charge of $___________
LATE CHARGE: If a payment is received more than 9 days late, Borrower will be
charged a late charge of: [_] _______% of the unpaid portion of the payment; [X]
$60.00 or 5.00% of the unpaid portion of the payment, whichever is [_] greater
[X] less.
COLLATERAL: To secure the payment and performance of obligations incurred under
this Note, Borrower grants Lender a security interest in all of Borrower's
right, title, and interest in all monies, instruments, savings, checking and
other accounts of Borrower (excluding IRA, Xxxxx and other accounts subject to
tax penalties if so assigned) that are now or in the future in Xxxxxx's custody
or control. [X] If checked, the obligations under this Note are also secured by
the collateral described in any security instruments executed in connection with
this Note, and any collateral described in any other security instruments
securing this Note or all of Borrower's obligations to Lender.
ALL ACCTS/REC; EQUIPMENT; FIXTURES; INV.; RECORDED IN CATOOSA CO, GA ON 3/12/01
(#023-2001-0363). CD #40148 IN THE AMOUNT OF $450,000.00 MATURING 06/01/2002.
RENEWAL: [_] If checked, this Note is a renewal, but not a satisfaction, of Loan
Number _________.
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THE PERSONS SIGNING BELOW ACKNOWLEDGE THAT THEY HAVE READ, UNDERSTAND, AND AGREE
TO THE PROVISIONS OF THIS NOTE, INCLUDING THE TERMS AND CONDITIONS ON THE
REVERSE SIDE, AND FURTHER ACKNOWLEDGE RECEIPT OF AN EXACT COPY OF THIS NOTE.
Dated: June 01, 2001
BORROWER: AMERICAN CONSUMERS, INC. BORROWER AMERICAN CONSUMERS, INC.
SHOP RITE SUPERMARKETS SHOP RITE SUPERMARKETS
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxx X. Xxxx Xxxxxxx X. Xxxxxxxxxx
Executive V. P. and Treasurer CEO, President
BORROWER: BORROWER:
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TERMS AND CONDITIONS
1. EVENT OF DEFAULT. An Event of Default shall occur under this Note in the
event that Borrower, any guarantor or any other third party pledging
collateral to secure this Note:
(a) fails to make any payment on this Note or any other indebtedness to Lender
when due;
(b) fails to perform any obligation or breaches any warranty or covenant to
Lender contained in this Note, any security instrument, or any other
present or future written agreement regarding this or any other
indebtedness of Borrower to Lender;
(c) provides or causes any false or misleading signature or representation to
be provided to Lender;
(d) sells, conveys, or transfers rights in any collateral securing this Note
without the written approval of Lender; or destroys, loses or damages such
collateral in any material respect; or subjects such collateral to seizure,
confiscation or condemnation.
(e) has a garnishment, judgement, tax levy, attachment or lien entered or
served against Borrower, any guarantor, or any third party pledging
collateral to secure this Note or any of their property;
(f) dies, becomes legally incompetent, is dissolved or terminated, ceases to
operate its business, becomes insolvent, makes an assignment for the
benefit of creditors, fails to pay debts as they become due, or becomes the
subject of any bankruptcy, insolvency or debtor rehabilitation proceeding;
(g) fails to provide Lender evidence of satisfactory financial condition;
(h) has a majority of its outstanding voting securities sold, conveyed, or
transferred to any person or entity other than any person or entity that
has the majority ownership as of the date of the execution of this
agreement; or
(i) if Lender deems itself insecure in good faith with respect to any other
obligations or indebtedness.
2. RIGHTS OF LENDER ON EVENT OF DEFAULT. If there is an Event of Default under
this Note, Lender will be entitled to exercise one or more of the following
remedies without notice or demand (except as required by law):
(a) to declare the principal amount plus accrued interest under this Note and
all other present and future obligations of Borrower immediately due and
payable in full; such acceleration shall be automatic and immediate if the
Event of Default is a filing under the Bankruptcy Code;
(b) to collect the outstanding obligations of Borrower with or without
resorting to judicial process;
(c) to cease making advances under this Note or any other agreement between
Borrower and Lender;
(d) to take possession of any collateral in any manner permitted by law;
(e) to require Borrower to deliver and make available to Lender any collateral
at a place reasonably convenient to Borrower and Lender;
(f) to sell, lease or otherwise dispose of any collateral and collect any
deficiency balance with or without resorting to legal process;
(g) to set-off Borrower's obligations against any amounts due to Borrower
including, but not limited to, monies, instruments, and deposit accounts
maintained with Lender; and
(h) to exercise all other rights available to Lender under any other written
agreement or applicable law.
Xxxxxx's rights are cumulative and may be exercised together, separately, and in
any order. Xxxxxx's remedies under this paragraph are in addition to those
available under any other written agreement or applicable law.
3. DEMAND FEATURE. [_] If checked, this Note contains a demand feature.
Xxxxxx's right to demand payment, at any time, and from time to time, shall
be in Xxxxxx's sole and absolute discretion, whether or not any default has
occurred.
4. FINANCIAL INFORMATION. Borrower will at all times keep proper books of
record and account in which full, true and correct entries shall be made in
accordance with generally accepted accounting principles and will deliver
to Lender, within ninety (90) days after the ended of each fiscal year of
Borrower, a copy of the annual financial statements of Borrower relating to
such fiscal year, such statements to include (i) the balance sheet of
Borrower as at the end of such fiscal year and (ii) the related income
statement, statement of retained earnings and statement of changes in the
financial position of Borrower for such fiscal year, prepared by such
certified public accountants as may be reasonably satisfactory to Lender.
Xxxxxxxx also agrees to deliver to Lender within fifteen (15) days after
filing same, a copy of Xxxxxxxx's income tax returns and also, from time to
time, such other financial information with respect to Borrower as Xxxxxx
may request.
5. MODIFICATION AND WAIVER. The modification or waiver of any or Borrower's
obligations or Xxxxxx's rights under this Note must be contained in a
writing signed by Xxxxxx. Lender may perform any of Borrower's obligations
or delay or fail to exercise any of its rights without causing a waiver of
those obligations or rights. A waiver on one occasion will not constitute a
waiver on any other occasion. Borrower's obligations under this Note shall
not be affected if Lender amends, compromises, exchanges, fails
to exercise, impairs or releases any of the obligations belonging to any
Borrower or guarantor or any of its rights against any Borrower, guarantor,
or any collateral securing any of Borrower's obligations.
6. SEVERABILITY. If any provision of this Note violates the law or is
unenforceable, the rest of the Note shall remain valid. Notwithstanding
anything contained in this Note to the contrary, in no event shall interest
accrue under this Note, before or after maturity, at a rate in excess of
the highest rate permitted by applicable law, and if interest (including
any charge or fee held to be interest by a court of competent jurisdiction)
in excess thereof be paid, any excess shall constitute a payment of, and be
applied to, the principal balance hereof, and if the principal balance has
been fully paid, then such excess interest shall be repaid to Borrower.
7. ASSIGNMENT. Xxxxxxxx agrees not to assign any of Xxxxxxxx' rights, remedies
or obligations described in the Note without the prior written consent of
Lender, which consent may be withheld by Xxxxxx in its sole discretion.
Xxxxxxxx agrees that Xxxxxx is entitled to assign some or all of its rights
and remedies described in this Note without notice to or the prior consent
of Borrower.
8. NOTICE. Any notice or other communication to be provided to Borrower or
Lender under this Note shall be in writing and mailed to the parities at
the addresses described in this Note or such other addresses as the parties
my designate in writing from time to time.
9. APPLICABLE LAW. This Note shall be governed by the laws of the state
indicated in Xxxxxx's address. Unless applicable law provides otherwise,
Borrower consents to the jurisdiction and venue of any court located in
such state selected by Lender, in its discretion, in the event of any legal
proceeding under this Note.
10. COLLECTION COSTS AND ATTORNEYS' FEES. To the extent permitted by law,
Xxxxxxxx agrees to pay all costs of collection, including attorneys' fees
of 15 percent of the principal and interest owing on the indebtedness if
the indebtedness is collected by law or through an attorney at law.
11. MISCELLANEOUS. This Note is being executed primarily for commercial,
agricultural, or business purposes. Borrower will provide Lender with
current financial statements and other financial information upon request.
Xxxxxxxx and Xxxxxx agree that time is of the essence. Xxxxxxxx agrees to
make all payments to Lender at any address designated by Lender and in
lawful United States currency. Borrower and any person who endorses this
Note waives presentment, demand for payment, notice of dishonor and protest
and further waives any rights to require Lender to proceed against anyone
else before proceeding against Borrower or said person. All references to
Borrower in this Note shall include all of the parties signing this Note,
and this Note shall be binding upon the heirs, personal representatives,
successors and assigns of Xxxxxxxx and Xxxxxx. If there is more than one
Borrower their obligations under this Note shall be joint and several. This
Note represents the complete and integrated understanding between Borrower
and Lender regarding the terms hereof.
12. JURY TRIAL WAIVER. XXXXXX AND BORROWER HEREBY WAIVE ANY RIGHT TO A TRIAL BY
JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS NOTE OR THE
COLLATERAL SERCURING THIS NOTE.
13. ADDITIONAL TERMS:
