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EXHIBIT 10(c)
MODIFIED, AMENDED AND RESTATED
LINE OF CREDIT NOTE
$30,000,000 Huntsville, Alabama
As of August 28, 1997
FOR VALUE RECEIVED, Xxxxxx Industries, Inc., a Delaware corporation
(the "Borrower"), hereby promises to pay, on the Line of Credit Termination
Date (such term and other capitalized terms used in this Note that are not
otherwise defined herein having the meanings defined for them in the
hereinafter-descibed Loan Agreement), to the order of AmSouth Bank, an Alabama
banking corporation (the "Lender"), at its Main Office in Birmingham, Alabama,
in lawful money of the United States of American, the principal amount of
Thirty Million and No/100 Dollars ($30,000.000), or so much thereof as may
heretofore have been advanced by the Lender under the Line of Credit Master
Note in the face amount of $15,000,000 (the "Initial Note"), and the Modified,
Amended and Restated Line of Credit Note in the face amount of $20,000,000,
(the "First Modification") which are being extended, renewed and modified
hereby or as may hereafter be advanced under this Note, and to pay interest
from the date of this note on sums advanced under the Initial Note and the
First Modification, and from the date advanced on additional sums advanced
under this Note, until payment in full, on the unpaid principal balance of the
amount advanced hereunder, at the rate per annum (computed on the basis of the
actual number of days elapsed over an assumed year of 360 days, as more
particularly set forth below) equal to the applicable rate set forth below:
1. Libor-Base Rate. This Note shall bear
interest at the LIBOR-Based Rate. On the first Business Day of
each month the Lender shall determine the LIBOR-Based Rate for the
then-current month, and all outstanding Advances under this note as
well as all Advances made during such calendar month shall accrue
interest at the LIBOR-Based Rate. If in the Lender's opinion it is
impossible or impractical to obtain the LIBOR-Based Rate for a certain
calendar month, all outstanding Advances as well as all Advances made
during such calendar month shall bear interest as the Prime Rate. Such
interest shall be payable monthly in arrears on the 15th day of each
month for the period ending the last day of the immediately preceding
calendar month. As used herein (a) "LIBOR-Based Rate" shall mean a
fixed rate 125 basis points in excess of the rate of interest
determined by the British Bankers Association as reported in the Wall
Street Journal of the cost of the funds available to the Lender from
the purchase on the London interbank market of funds in the form of
time deposits in United States dollars in the approximate amount of the
Maximum Line of Credit having a one month maturity, adjustable for any
applicable LIBOR Reserve Requirement; and (b) "LIBOR Reserve
Requirement" shall mean the percentage prescribed by the Board of
Governors of the Federal Reserve System (or any successor Government
Authority), on the date on which the LIBOR-Based Rate is determined,
for determining the reserve requirements of the Lender (including any
marginal, emergency, supplemental, special or other reserves) with
respect to liabilities relating to time deposits purchased in the
London interbank market
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having a one month maturity, without benefit or credit for any
proration, exemptions or offsets under any now or hereafter applicable
regulations.
2. Reconversion to Prime Rate. If this Note bears
interest at the LIBOR-Based Rate, then the Borrower shall have a one
time option after the IPO Date to convert the interest rate applicable
to this Note from the LIBOR-Based Rate back to the Prime Rate. The
Borrower may exercise this option by giving written notice at least 15
days prior to the first Business Day of any calendar month. Such
notice shall be irrevocable once given and the change shill become
effective upon the first Business Day of a calendar month that occurs
at least 15 days after such notice is given. Commencing on the
effective date of the Prime Rate option, all outstanding Advances as
well as all future Advances under this Note shall bear interest at a
per annum rate equal to the Prime Rate in the same manner as set forth
in paragraph 1 of this Note.
The first monthly interest payment under this Note shall be due and
payable on September 15, 1997. Upon payment in full of this Note, all accrued
interest shall be due and payable In full.
The Lender will send the Borrower a monthly billing statement in
advance of each interest payment date (i.e. the 15th day of each month) showing
the interest that accrued on the Line of Credit through the end of the
immediately preceding month and which shall be due and payable on such interest
payment date.
This Note is a master note, and it is expected that the proceeds of the
loan evidenced hereby will be advanced by the Lender to the Borrower in
installments, as needed for the purposes set forth in the Loan Agreement, upon
compliance with the terms and conditions set forth therein. This Note shall be
valid and enforceable as to, and all collateral granted to the Lender as
security for the loan evidenced hereby shall be and remain valid and binding as
security for, the aggregate amount advanced at any time hereunder, whether or
not the full face amount hereof is advanced. Each principal advance and
payment on this Note may be reflected by notations made by the Lender on its
internal records (which may be kept on computer or otherwise), and the Lender
is hereby authorized to record on such records all such principal Advances and
payments. The aggregate unpaid amount reflected by the Lender's notations on
its internal records (whether on computer or otherwise) shall be deemed
rebuttably presumptive evidence of the principal amount remaining outstanding
and unpaid on this Note. No failure of the Lender so to record any Advance or
payment shall limit or otherwise affect the obligation of the Borrower
hereunder with respect to any Advance, and no payment of principal by the
Borrower shall be affected by the failure of the Lender to so record the same.
This note is being executed and delivered to modify, amend and restate
in its entirety, effective as of the Effective Date of the Third Amendment,
the Line of Credit Note dated January 7, 1993 in the face amount of
$15,000,000, and the First Modification dated March 15, 1995 in the face
amount of $20,000,000. Notwithstanding the execution of this Note the
outstanding indebtedness evidenced by the Initial Note and the First
Modification shall remain in full force and effect and shall hereafter be
evidenced by this Note, and nothing contained
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herein shall be construed as effecting any novation, payment or accord and
satisfaction of such indebtedness.
This Note is the Modified, Amended and Restated Line of Credit Note referred to
in the Third Amendment To Loan Agreement and other loan documents, and is
subject to all of the provisions of the Loan Agreement, including those
providing for optional prepayment, acceleration of maturity and adjustment of
the interest rate hereunder, all set forth in the Loan Agreement. This Note is
secured by the Security Documents, as that term is defined in the Loan
Agreement. This Note in executed in renewal, extension and modification of the
Initial Note and the First Modification. The terms of this Note shall be
applicable commencing on the Effective Date. The terms of the Initial Note
and the First Modification shall continue to be applicable prior to the
Effective Date. The Lender may retain the Initial Note and the First
Modification in its file along with this Note until the indebtedness evidenced
hereby has been paid in full and the Line of Credit has been terminated as set
forth in the Loan Agreement.
This Note, as modified, amended and restated, shall continue to be secured by
all of the Security Documents described in the Loan Agreement, as amended.
Nothing continued herein shall be construed to release, satisfy, discharge,
terminate, subordinate or otherwise adversely affect or impair (a) the validity
or enforceability of the indebtedness evidenced by the Initial Note and the
First Modification, as modified, amended and restated hereby, (b) the validity,
perfection or priority of the Liens of the Security Documents as security for
such indebtedness, or of any of the other Loan Documents, or (c) the liability
of any obligor for the repayment of such indebtedness.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Its: Vice President of Finance
and Treasurer
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Xxxx Xxxxxx Xxx 000
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Taxpayer I.D.: 00-0000000
