EXHIBIT 10.9
Promissory Note
(Term Loan)
$10,000,000 Atlanta, Georgia
June 17, 2005
THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY HAVE
BEEN SUBORDINATED TO CERTAIN OBLIGATIONS OF THE MAKER
PURSUANT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT
BETWEEN XXXXXXX X. XXXXXX AS JUNIOR AGENT, AND WACHOVIA
BANK, NATIONAL ASSOCIATION, AS SENIOR LENDER, AS AMENDED
FROM TIME TO TIME.
FOR VALUE RECEIVED, XXXXXX INDUSTRIES, INC., a Tennessee corporation
having its principal place of business located in Ooltewah, Tennessee ("Xxxxxx")
and XXXXXX INDUSTRIES TOWING EQUIPMENT INC., a Delaware corporation having its
principal place of business located in Ooltewah, Tennessee ("Xxxxxx Towing")
(Xxxxxx and Xxxxxx Towing each are referred to as a "Borrower" and collectively,
the "Borrowers"), hereby promise to pay to the order of Xxxxxxx X. Xxxxxx (the
"Lender"), in its individual capacity, at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxx 00000 (or at such other place or places as the Lender may designate in
writing) at the times set forth in the Amended and Restated Credit Agreement
dated as of July 23, 2001 among the Borrowers, the financial institutions party
thereto (collectively, the "Lenders") and the Agent (as amended, supplemented or
restated and in effect from time to time, the "Agreement"; all capitalized terms
not otherwise defined herein shall have the respective meanings set forth in the
Agreement), in lawful money of the United States of America in immediately
available funds, the principal amount of TEN MILLION DOLLARS ($10,000,000) on
the Term Loan Termination Date or such earlier date as may be required pursuant
to the terms of the Agreement, and to pay accrued but unpaid interest on the
unpaid principal amount hereof, in like money, at said office, on the dates and
at the rates provided in ARTICLE II of the Agreement. All or any portion of the
principal amount of the Term Loan may be prepaid or required to be prepaid as
provided in the Agreement.
Each Borrower shall be jointly and severally liable as a primary
obligor.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount hereof and
accrued but unpaid interest thereon evidenced by this Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and interest
due hereunder, all costs of collection, including reasonable attorneys' fees,
and interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Note is the Term Note referred to in the Agreement evidencing the
Existing Term Loan and the New Term Loan and is issued pursuant to the Fifth
Amendment and entitled to the benefits and security of the Agreement to which
reference is hereby made for a more complete statement of the terms and
conditions upon which the Term Loan evidenced hereby was made and is to be
repaid. The obligations evidenced hereby are secured by the Security
Instruments. This Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
This Note constitutes an amendment and restatement of that certain
Promissory Note dated February 12, 2004 issued by Borrowers to Harbourside in
the aggregate principal amount of $4,293,217.14 (the "Prior Note") and this Note
is given as a substitution of, and not as a payment of, the Prior Note. The
indebtedness evidenced by this Note constitutes a continuation and modification
of a portion of that indebtedness outstanding under the Credit Agreement and
evidenced by the Prior Note. All of the indebtedness, liabilities and
obligations owing by the Borrower under the Prior Note shall continue and be
evidenced in part by this Note delivered in partial substitution for, and not
payment or novation of, the Prior Note.
This Note shall be governed by and construed in accordance with the laws
of the State of Georgia.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
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IN WITNESS WHEREOF, each of the Borrowers has caused this Term Note to
be made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
XXXXXX INDUSTRIES, INC.
By: /s/ X. Xxxxxxx Xxxx
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Name: X. Xxxxxxx Xxxx
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Title: Chief Financial Officer
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XXXXXX INDUSTRIES TOWING EQUIPMENT INC.
By: /s/ X. Xxxxxxx Xxxx
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Name: X. Xxxxxxx Xxxx
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Title: Chief Financial Officer
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