NOTE SECURED BY STOCK PLEDGE AGREEMENT
$400,000 San Antonio, Texas November 5, 2003
FOR VALUE RECEIVED, Solico International, Inc., a Texas
corporation ("Maker") promises to pay to the order of Xxxxxx X.
Xxxxxx ("Payee"), the principal sum of $400,000, together with
interest from the date of this Note Secured by Stock Pledge
Agreement (this "Note") on the unpaid principal balance from time
to time outstanding hereunder. Such interest shall accrue from
the date of advancement on the unpaid principal balance at the
rate of six percent (6%) per annum, compounded annually until
maturity.
This Note is being executed and delivered in connection
with and is subject to the terms of (i) the Stock Pledge
Agreement, dated as of even date herewith, by and between Maker
and Payee (the "Stock Pledge Agreement"), and (ii) the Stock
Purchase Agreement, dated as of even date herewith, by and
between Maker and Payee (as amended, the "Stock Purchase
Agreement"), copies of which are attached hereto as Exhibit A and
Exhibit B, respectively, and each of which is incorporated herein
by reference. Capitalized terms used but not defined herein
shall have the respective meanings assigned to them in the Stock
Pledge Agreement.
This Note is being delivered by Maker to Payee as
payment of the First Purchase Price for the purchase of 200,000
shares of common stock of American Building Control, Inc., a
Delaware corporation ("ABC") owned by Payee (the "Shares").
All payments hereunder shall be made in lawful tender
of the United States. Such payment shall be credited first to
any accrued and unpaid interest, and the remainder shall be
applied to principal. Prepayment of principal, together with all
accrued and unpaid interest, may be made at any time without
penalty.
The entire unpaid principal balance of this Note,
together with all accrued and unpaid interest, shall mature and
immediately become due and payable in one lump sum on January 5,
2004; provided, however, that the entire principal sum of this
Note, together with all accrued and unpaid interest, shall mature
and immediately become due and payable upon the occurrence of an
Event of Default (as defined in the Stock Pledge Agreement).
This Note is full recourse to Maker. Payment of this
Note is secured by a pledge of the Shares pursuant to the Stock
Pledge Agreement. Maker, however, shall remain liable for
payment of this Note, and assets of Maker, in addition to the
Collateral under the Stock Pledge Agreement, may be applied to
the satisfaction of Maker's obligations hereunder.
This Note shall be construed in accordance with the
laws of the State of Texas without giving effect to any otherwise
applicable conflict-of-law rules.
This Note, the Stock Pledge Agreement and the Stock
Purchase Agreement constitute the full and entire understanding
and agreement between the parties with regard to the subject
matter hereof and thereof and supersede any and all prior
agreements relating to the subject matter hereof and thereof.
Any term of this Note may be amended and the observance
of any term of this Note may be waived (either generally or in a
particular instance and either retroactively or prospectively),
only with the written consent of Maker and Payee.
If one or more provisions of this Note are held to be
unenforceable under applicable law, such provision shall be
excluded from this Note and the balance of this Note shall be
interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
In the event any interest paid on this Note is deemed
to be in excess of the then legal maximum rate, then that portion
of the interest payment representing an amount in excess of the
then legal maximum rate shall be deemed a payment of principal
and applied against the principal of this Note.
Maker hereby waives presentment, demand, protest,
notice of dishonor, diligence and all other notices, any release
or discharge arising from any extension of time, discharge of a
prior party, release of any or all of any security given from
time to time for this Note, or other cause of release or
discharge other than actual payment in full hereof.
It is expressly agreed that, if this Note is referred
to an attorney or if suit is brought to collect this Note or any
part hereof or to enforce or protect any rights conferred upon
Payee by this Note or any other document evidencing or securing
this Note, then Maker promises and agrees to pay all costs,
including without limitation reasonable attorneys' fees, incurred
by Payee.
This Note may not be assigned or transferred by Maker
without the prior written consent of Payee. Payee may assign or
transfer all or any part of this Note to any affiliate of Payee
or to Solico or any affiliate of Solico, without prior notice to
or consent of Maker. Except as otherwise provided herein, the
terms and conditions of this Note shall inure to the benefit of
and be binding upon the respective successors and permitted
assigns of the parties. Nothing in this Note, express or
implied, is intended to confer upon any party other than Maker
and Payee or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by
reason of this Note, except as expressly provided in this Note.
[Signature page follows]
-2-
IN WITNESS WHEREOF, the undersigned Maker has executed
this Note to be effective as of the date first set forth above.
MAKER:
SOLICO INTERNATIONAL, INC.
By: /s/ X. XXXXXXX XXXXXX
-------------------------
Name: X. Xxxxxxx Sparks
-----------------------
Title: President
----------------------
