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EXHIBIT 10.4
AMSOUTH BANK OF ALABAMA
MASTER NOTE FOR BUSINESS AND COMMERCIAL LOANS
$1,750,000.00 Montgomery, Alabama
April 9, 1999
FOR VALUE RECEIVED, the undersigned (hereinafter called, whether one or
more, the "Borrower"), jointly and severally (if more than one) promises to pay
to the order of AmSouth Bank of Alabama, its successors and assigns (hereinafter
sometimes called the "Bank" and sometimes, together with any other holder of
this note, called "Holder"), at any office of Holder or at such other place as
Holder may from time to time designate, the sum of One Million Seven Hundred
Fifty Thousand and 00/100 Dollars ($1,750,000.00), or so much thereof as the
Bank has advanced to the Borrower hereunder (the "Loan"), plus interest from the
date hereof until maturity (whether by acceleration or otherwise) on the
outstanding unpaid principal balance of the Loan, at the rate of [check (1), (2)
or (3)]:
[ ] (1)_______ % per annum.
[ ] (2)_______ % per annum in excess of the prime rate of the Bank in
effect from time to time as designated by the Bank (the "Prime Rate"), with
changes in the interest rate on this note caused by changes in the Prime Rate to
take effect on the date the Prime Rate changes without notice to the Borrower or
any other action by Xxxxxx:
[X] (3) See Exhibit "A" attached hereto and by this reference becomes a
part hereto.
Interest will be computed on the basis of the actual number of days
elapsed over (check one) [X] an assumed 360-day year, [ ] a 365- (or 366-, if
leap year) day year.
If none of the foregoing provisions for a rate of interest is checked,
the rate of interest payable on the Loan until maturity (whether by acceleration
or otherwise) shall be the Prime Rate of the Bank in effect from time to time,
or such lesser rate as shall be the maximum permitted by law, computed on the
basis of the actual number of days elapsed over an assumed 360-day year.
Notwithstanding anything to the contrary contained in this note, the
amount paid or agreed to be paid as interest on the principal amount of the Loan
shall never exceed the highest lawful rate allowed under applicable law. If at
any time, interest is due to be paid in an amount that exceeds the highest
lawful rate, then the obligation to pay interest hereunder shall be reduced to
the highest lawful rate. If at any time, interest is paid in an amount that is
greater than the highest lawful rate, then the amount that exceeds the highest
lawful rate shall be deemed to have been a prepayment of principal of the Loan
and applied to principal in the manner hereinafter provided, or if the excessive
amount of interest exceeds the unpaid principal balance, the excess shall be
refunded to the Borrower.
The Borrower hereby agrees to repay principal and interest as follows:
The Borrower will pay the principal amount of the Loan (check one and
complete if applicable):
[ ] on demand, [ ] ___________ days after date, or
[ ]___________________________________________________________________
_______________________________________________________________________________
and will pay the interest on the Loan (check one and complete if applicable):
[ ] at maturity, [ ] in monthly installments on the ___ day of each
month, and at maturity
[ ] in quarterly installments on the ___________ day of each ________,
_____________________, ___________________, and _____________________________
and at maturity, or
[ ] __________________________________________________________________
_______________________________________________________________________________
For purposes of sending periodic billing statements in advance of each
interest payment date, at the Holder's option, the Prime Rate in effect 15 days
prior to each interest payment date shall be deemed to be the Prime Rate that
continues in effect until the date prior to such interest payment date for
purposes of computing the amount of interest payable on such interest payment
date. If the Prime Rate changes during such 15-day period, the difference
between the amount of interest that in fact accrues during such period and the
amount of interest actually paid will be added to or subtracted from, as the
case may be, the interest otherwise payable in preparing the periodic billing
statement for the next succeeding interest payment date. In determining the
amount of interest payable at the final maturity or upon full prepayment of this
Master Note, all changes in the Prime Rate occurring on or prior to the day
before the final maturity date or the date of such full prepayment shall be
taken into account.
If none of the foregoing provisions for the repayment of principal
and/or interest is checked, the principal, if not checked, and interest, if not
checked, due hereunder shall be payable on demand of Holder.
If permitted under applicable law, the Borrower agrees to pay to
Holder, on demand, a late charge. This late charge will be 5% of any installment
that is not paid within 12 days after it is due and will be 5% of the interest
portion of the payment due upon the final maturity date of this note if that
payment is not paid within 12 days after it is due. This late charge will never
be less than $10 nor more than $250 on each payment. This provision shall not be
deemed to excuse a late payment or be deemed a waiver of any other right Holder
may have, including, without limitation, the right to declare the entire unpaid
principal and interest immediately due and payable.
All payments coming due on this Master Note shall be made in cash or
immediately available funds at the Holder's office at which the payment is made.
At its option, the Holder may elect to give the Borrower credit for any payment
made by check or other instrument in accordance with the Holder's availability
schedule in effect from time to time for such items and instruments, which the
Holder will make available to the Borrower on request. Each payment on the
indebtedness evidenced hereby will first reduce charges owed by the Borrower
that are neither principal nor interest. The remainder of each payment will be
applied first to accrued but unpaid interest and then to unpaid principal. Any
partial prepayments of principal will be applied to installments due in the
inverse order of their maturity and no such partial prepayment of principal will
have the effect of postponing, satisfying, reducing, or otherwise affecting any
scheduled installment before the principal of and interest on the Loan is, and
all other charges due hereunder are, paid in full.
This note is a master note, and it is contemplated that the proceeds of
the Loan evidenced hereby will be advanced from time to time to the Borrower by
Holder in installments, as requested by the Borrower and agreed to by Xxxxxx. It
is further contemplated that any amounts advanced under this note may be prepaid
from time to time by the Borrower and subsequently re-advanced by Xxxxxx, so
long as the principal amount outstanding does not exceed the face amount of this
note. By reason of prepayments hereon there may be times when no indebtedness is
owing hereunder, and notwithstanding any such occurrence, this note shall remain
valid and shall be in full force and effect as to each subsequent principal
advance made hereunder. The Holder shall maintain a record (by computer or
otherwise) of all principal advances and repayments under this Master Note and
that record shall be presumed to be correct in the absence of clear and
convincing evidence to the contrary.
Unless the Holder has otherwise agreed in writing, the Holder is not
obligated to make any advances or re-advances hereunder, and all advances and
re-advances shall be made at the option of Xxxxxx. This note shall be valid and
enforceable as to the aggregate amount advanced at any time hereunder, whether
or not the full face amount hereof is advanced.
If the Loan is payable on demand, this paragraph is inoperative and is
not applicable; otherwise, this paragraph is operative and applies to the Loan
in accordance with its terms. In the event of default in the payment of any one
or more installments of principal or interest which may become due hereunder,
when and as the same fall due, or in the payment of all of principal and
interest due hereunder at maturity, or the failure of any maker, endorser,
surety or guarantor hereof (hereinafter called the "Obligors") to pay when due
or perform any of the Obligations (meaning thereby this note and any and all
renewals and extensions thereof and all other liabilities and indebtedness of
the Borrower to Holder, now existing or hereafter incurred or arising, direct or
indirect, and however incurred) or any part thereof or the failure of any
Obligor to pay when due any other liability to Holder, in the event a default
occurs under the terms of any loan agreement or other instrument (other than
this note), document or paper evidencing, securing, guaranteeing, or executed in
connection with all or any part of the Obligations (hereinafter, together with
this note, collectively called the "Loan Documents"), or in the event Holder
shall in good xxxxx xxxx itself insecure for any reason, or on the happening of
any one or more of said events, Holder shall have the right at its election and
without notice to any Obligor to declare the Obligations immediately due and
payable with interest to date. No delay in making such election shall be
construed to waive the right to make such election. Holder may note the fact of
acceleration hereon without stating the ground therefor, and whether or not
noted hereon such election to accelerate shall be effective.
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In the event of death or, insolvency of, general assignment by,
judgment against, filing of a petition in bankruptcy by or against, filing a
petition for the reorganization of, filing of application in any court for
receiver for, or issuance of a writ of garnishment or attachment in a suit or
action against any Obligor or against any of the assets of any Obligor, or on
the happening of any one or more of said events, the Obligations shall, without
notice to or demand upon any Obligor, immediately become due and payable with
interest to date unless Holder shall on notice of such event elect to waive such
acceleration by written notation hereon.
Each of the Obligors hereby severally (a) waives as to this debt or
any renewal or extension thereof all rights of exemption under the Constitution
or laws of Alabama or any other state as to personal property; (b) waives
demand (unless this note is payable on demand), presentment, protest, notice of
protest, notice of dishonor, suit against any party and all other requirements
necessary to hold any Obligor liable; (c) agrees that time of payment may be
extended one or more times for any period of time (whether such period is
shorter or longer than the initial term of this note) or renewal notes taken or
other indulgence granted without notice of or consent to such action and
without release of liability as to any Obligor; (d) as to all or any part of
the Obligations, consents to Holder's releasing, agreeing not to sue,
suspending the right to enforce this instrument against or otherwise discharging
or compromising any Obligation of any Obligor or other person against whom any
Obligor has to the knowledge of Holder a right of recourse, all without notice
to or further reservations of rights against any Obligor, and all without in
any way affecting or releasing the liability of any Obligor; (e) consents to
Holder's releasing, exchanging or otherwise dealing in any manner with all or
any portion of any collateral, lien, or right of set-off which may now or
hereafter secure this note, all without notice to or further reservations of
rights against any Obligor, and all without in any way affecting or releasing
the liability of any Obligor, even though such release, exchange or other
dealing may in any manner and to any extent impair any such collateral, lien or
right of set-off; (f) agrees to pay all costs of collecting or securing or
attempting to collect or secure this note or defending any unsuccessful claim
asserted against the Holder in connection with this note, including reasonable
attorneys' fees; and (g) warrants that this Loan is for business, commercial or
agricultural purposes.
In addition to all liens upon, and rights of set-off against, any
monies, securities, or other property of any of the Obligors given to Holder by
law, Holder shall have a lien upon and a right of set-off against all monies,
securities, and other property of any of the Obligors now or hereafter in the
possession of, or on deposit with, Holder, whether held in a general or special
account or deposit, for safekeeping, or otherwise; and every such lien and
right of set-off may be exercised without demand upon or notice to any Obligor,
and the Bank shall have no liability with respect to any of Obligor's checks or
other items which may be returned or other funds transfers which may not be made
due to insufficient funds thereafter.
The Borrower understands that the Bank may from time to time enter
into a participation agreement or agreements with one or more participants
pursuant to which such participant or participants shall be given
participations in the Loan and that such participants may from time to time
similarly grant to other participants sub-participations in the Loan. The
Borrower agrees that any participant may exercise any and all rights of
banker's lien or set-off, whether arising by operation of law or given to
Holder by the provisions of this note, with respect to the Borrower as fully as
if such participant had made the Loan directly to the Borrower. For the
purposes of this Paragraph only, the Borrower shall be deemed to be directly
obligated to each participant or subparticipant in the amount of its
participating interest in the principal of, and interest on, the Loan.
Neither any failure nor any delay on the part of Holder in exercising
any right, power or privilege under this note shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise or the exercise of any other right, power or privilege. No
modification, amendment or waiver of any provisions of this note shall be
effective unless in writing and signed by a duly authorized officer of Holder,
and then the same shall be effective only in the specific instance and for the
purpose for which given. No notice to or demand on any Obligor in any case
shall entitle any Obligor to any other or further notice or demand in the same,
similar or other circumstances.
Any provision of this note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
The provisions of this note shall inure to the benefit of the Holder,
its successors and assigns and shall be binding upon the heirs, successors and
assigns of each Obligor, except that no Obligor may assign or transfer his, her
or its obligation hereunder without the written consent of Xxxxxx.
All rights, powers and remedies of Holder under this note and now or
hereafter existing at law, in equity or otherwise shall be cumulative and may
be exercised successively or concurrently.
The Loan Documents contain the entire understanding and agreement
between the Borrower and the Holder with respect to the Loan and supersede any
and all prior agreements, understandings, promises, and statements with respect
to the Loan. This Master Note may not be modified, amended, or supplemented in
any manner except by a written agreement executed by both the Borrower and the
Holder.
This note shall be construed in accordance with and governed by the
laws of the State of Alabama.
This agreement is executed under seal by the Borrower or each of them.
CAUTION--IT IS IMPORTANT THAT YOU THOROUGHLY READ THIS CONTRACT
BEFORE YOU SIGN IT
No. 415181 594556 594531 Xxxxxxx Transport, Inc.
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Due April 7, 2000 By: /s/ Xxxxxxx X. Xxxxxx
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Its: CFO
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