EXHIBIT 10.4
NOTE AND PLEDGE AGREEMENT
October 1, 2001
Charlotte, North Carolina
FOR VALUE RECEIVED, the undersigned, Xxxxxx X. Xxxx, Xx., a resident of
the State of North Carolina (the "Maker"), promises to pay to the order of Xxxx,
Inc., a Delaware corporation (the "Company"), the principal sum of Two Million
Five Hundred Thousand and 00/100 Dollars ($2,500,000.00) in accordance with the
terms set forth in this Note and Pledge Agreement ("Agreement"). The principal
amount outstanding from time to time under this Agreement will bear interest at
a rate per annum equal to the 30 day LIBOR rate as published in the Wall Street
Journal on the last business day of the month plus one hundred fifty (150) basis
points for the entire following month. The principal amount outstanding under
this Agreement will be payable in five equal annual installments of Five Hundred
Thousand and 00/100 Dollars ($500,000.00) each, plus all accrued and unpaid
interest, on January 3, 2003 and on January 3 of each year thereafter to and
including January 3, 2007.
As security for all sums to be paid by the Maker under this Agreement,
the Maker hereby pledges, hypothecates, assigns, transfers, sets over and
delivers to the Company, and grants to the Company a security interest in, all
of the Maker's right, title and interest in, to and under Five Hundred
Fifty-Five Thousand Five Hundred Fifty-Five (555,555) shares of the Company's
Class A common stock owned by the Maker evidenced by stock certificates numbered
1134 and 1135 (the "Pledged Shares"), and all distributions, dividends, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Pledged Shares (collectively, the "Pledged Collateral"). Provided,
however, that so long as no Event of Default (as defined below) shall have
occurred and be continuing, Maker shall have the right (1) to vote and give
consents with respect to the Pledged Shares and (2) to receive and retain all
distributions, dividends, cash, instruments and other property or proceeds from
time to time received, receivable or otherwise distributed with respect to the
Pledged Shares. All certificates representing or evidencing the Pledged Shares
shall be delivered to and held by the Company, pursuant hereto, and shall be
accompanied by duly executed, undated instruments of transfer or assignment in
blank.
Upon each cash payment of principal and interest, the Company will
return to the Maker and release from the terms of this Agreement a portion of
the Pledged Collateral equal in value to the amount of such payment. In the
event that the Maker fails to make any payment of principal or interest within
ten (10) days of the date when due under the terms of this Agreement, upon
demand of the Company, the Maker shall transfer and convey to the Company all of
his right, title and interest in and to Pledged Collateral having a value equal
to the amount of such payment. To the extent that the amount of the payment due
exceeds the value of the Pledged Collateral, the Maker shall remain fully liable
for any such deficiency and, upon the demand of the Company, shall promptly pay
the amount of such deficiency to the Company. For the purposes of this
paragraph, the value of the Pledged Collateral shall be determined through an
independent appraisal performed by an appraiser selected by the Company. The
Maker hereby irrevocably constitutes and appoints the Company as the proxy and
attorney-in-fact of the Maker, with full power of substitution, to enforce any
of the Maker's obligations under this paragraph.
All indebtedness evidenced by this Agreement shall automatically become
due and payable hereunder, regardless of any prior demand or notice to the
Maker, if (1) the Maker initiates, or has initiated against him, any proceedings
for bankruptcy, reorganization, adjustment of debts, or other insolvency or
receivership proceedings under applicable federal or state law, or (2) the Maker
assigns, transfers or sells or creates or permits to be created any lien or
other encumbrance on any of the Pledged Collateral. The occurrence of any of the
foregoing events shall constitute an "Event of Default" under the Pledge
Agreement.
All principal and interest payable under this Promissory Note shall be
paid to the Company at its principal office at 0000 Xxxx Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, or at such other place as the Company may designate in
writing to the Maker. The payment of any indebtedness evidenced by this
Agreement shall not affect the enforceability of this Agreement as to any
future, different, or other indebtedness of the Maker evidenced hereby.
The Maker may prepay in cash the indebtedness evidenced by this
Agreement in whole or in part at any time without notice, penalty, or prepayment
fee, and without interest on the amounts prepaid from the date the Company
receives such prepayment. The Maker shall give the Company at least ten (10)
days prior written notice of his intention to prepay such indebtedness, which
notice shall specify the principal amount of the indebtedness to be prepaid and
the date of such prepayment. On such prepayment date, the Maker shall pay to the
Company the principal amount of the indebtedness to be prepaid together with
accrued but unpaid interest thereon. All payments hereunder received from the
Maker by the Company shall be applied first to interest to the extent then
accrued and then to principal.
Promptly following the payment in full of all sums due hereunder, the
Company shall deliver to the Maker all Pledged Collateral then held by the
Company at such time and all instruments of assignment executed in connection
therewith, free and clear of the liens created hereby and, except as otherwise
provided herein, all of the Maker's obligations hereunder shall at such time
terminate.
The Maker hereby waives notice of acceptance of this Agreement, and
also presentment, demand, protest and notice of dishonor of any and all of the
indebtedness evidenced by this Agreement, and promptness in commencing suit
against any party hereto or liable hereon, and in giving any notice to or of
making any claim or demand hereunder upon the Maker. No act or omission of any
kind on the Company's part shall in any event affect or impair this Agreement.
Failure or forbearance of the Company to exercise any right hereunder, or
otherwise granted by law, shall not affect or release the liability of the Maker
hereunder, and shall not constitute a waiver of such right unless so stated by
the Company in writing.
In the event the indebtedness evidenced by this Promissory Note is
collected by legal action, or through an attorney-at-law, the Maker agrees to
pay to the Company all costs of collection, including reasonable attorneys'
fees.
All of the rights, privileges, remedies and options given to the
Company shall inure to the benefit of its successors and assigns; and all the
terms, conditions, promises, covenants,
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provisions and warranties of this Agreement shall inure to the benefit of and
shall bind the representatives, successors and assigns of the Company and the
Maker. The Maker may not assign this Agreement to any Person.
Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
This Agreement reflects the entire agreement between the Maker and the
Company with respect to the subject matter herein, and Maker has not received or
relied upon any written or oral representations not reflected herein in
executing this Agreement and agreeing to its terms. This Agreement may not be
modified orally.
This Agreement shall be governed by, and shall be construed in
accordance with, the laws of the State of North Carolina without giving effect
to the conflict of law provisions thereof.
Time is of the essence hereunder.
IN WITNESS WHEREOF, the undersigned Maker has duly executed this
Promissory Note as of the day and year first above written.
_____________________________(SEAL)
Xxxxxx X. Xxxx, Xx.
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