NOTE SECURED BY STOCK PLEDGE AGREEMENT
$200,000 San Antonio, Texas September 22, 2003
FOR VALUE RECEIVED, Xxxxxx X. Xxxxxx ("Maker") promises
to pay to the order of Xxxxx X. Xxxxx ("Payee"), the principal
sum of $200,000, 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 seven percent (7%) per
annum, compounded annually until maturity.
This Note is being executed 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 Solico
International, Inc. ("Solico"), a copy of which is attached
hereto as Exhibit A (the "Stock Purchase Agreement"), 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.
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 November 1,
2003; 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).
Upon consummation of the First Closing (as defined in
the Stock Purchase Agreement), the entire unpaid principal
balance of this Note, together with all accrued and unpaid
interest, shall be deemed to have been automatically paid in full
by Maker by transfer to Payee of 125,000 of the Shares (the
"Payment Shares") of common stock of American Building Control,
Inc., a Delaware corporation ("ABC"), owned by Maker and pledged
to Payee pursuant to the Stock Pledge Agreement (the "Conversion
Event"). Upon the Conversion Event, Maker shall execute such
stock powers, instruments, certificates and other documents as
may be required by Payee to evidence the transfer of the Payment
Shares to Maker, and thereupon this Note shall be deemed paid and
satisfied in full.
All past due principal and accrued interest on this
Note shall bear interest from maturity until paid at the lesser
of (i) the rate of twelve percent (12%) per annum or (ii) the
highest rate for which Maker may legally contract under
applicable law.
This Note is full recourse to Maker. Payment of this
Note is secured by the Stock Pledge Agreement covering certain
shares of the common stock of ABC held of record by Maker.
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 Xxxxx.
This Note may not be assigned or transferred by Maker
without the prior written consent of Xxxxx. 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]
IN WITNESS WHEREOF, the undersigned Maker has executed
this Note to be effective as of the date first set forth above.
MAKER:
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
