Promissory Note
(Revolving Loan)
$30,000,000 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 WACHOVIA BANK, N.A. (the "Lender"), in its individual
capacity, at the office of NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as agent for the Lenders (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 THIRTY MILLION AND
NO/100 DOLLARS ($30,000,000) or, if less than such principal
amount, the aggregate unpaid principal amount of all Loans made
by the 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 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 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 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
disbursements, and interest due hereunder thereon at the rates
set forth above.
Interest hereunder shall be computed as provided in the
Agreement.
This Note is one of the Notes 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 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
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 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
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)
