Promissory Note
(Swing Line Loan)
$5,000,000 Charlotte, North Carolina
January 30, 1998
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 NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION (the
"Swing Line Lender"), in its individual capacity, at the office
of NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, as agent for
the Swing Line Lender (the "Agent"), located at One Independence
Center, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000 (or at such other place or places as the Agent may
designate in writing) at the times set forth in the Credit
Agreement dated as of January 30, 1998 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 FIVE MILLION AND NO/100 DOLLARS ($5,000,000)
or, if less than such principal amount, the aggregate unpaid
principal amount of all Swing Line Loans made by the Swing Line
Lender to the Borrowers pursuant to the Agreement on the
Revolving Credit Termination Date or such earlier date as may be
required pursuant to the terms of the Agreement, and to pay
interest from the date hereof 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 Swing Line Loans 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 and accrued but unpaid interest
thereafter shall bear interest which shall be payable on demand
at the rates per annum set forth in the proviso to SECTION 2.2(a)
of the Agreement or the maximum rate permitted under applicable
law, if lower, until such principal and interest have been paid
in full. Further, in the event of such acceleration, this Swing
Line Note shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which
are hereby waived by the Borrowers.
In the event any amount evidenced by this Swing Line Note is
not paid when due at any stated or accelerated maturity, the
Borrowers agree to pay, in addition to the principal and
interest, all costs of collection, including reasonable
attorneys' fees, and interest due hereunder thereon at the rates
set forth above.
Interest hereunder shall be computed as provided in the
Agreement.
This Note is the Swing Line Note referred to in the
Agreement and is issued pursuant to 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 Swing Line Loans evidenced hereby were or are made and
are to be repaid. This Note is subject to certain restrictions
on transfer or assignment as provided in the Agreement.
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
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 satisfied 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
Swing Line Note any collateral deposited by any of said Persons
as security. Protest, notice of protest, notice of dishonor,
dishonor, demand or any other formality are hereby waived by all
parties bound hereon.
This Swing Line Note shall be governed by and construed in
accordance with the law of the State of Georgia.
2
IN WITNESS WHEREOF, each of the Borrowers has caused this
Swing Line 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.
ATTEST:
By: /s/ Xxxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx
_______ Secretary Title: President
(SEAL)
XXXXXX INDUSTRIES TOWING
EQUIPMENT INC.
ATTEST:
By: /s/ Xxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx Name: Xxxx Xxxxxxx
_______ Secretary Title: Vice President
(SEAL)
