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Exhibit 10.3(b)
APPROVED BY:
Xxxx Xxxxxxxx - 269181 COMMERCIAL BANKING CENTER
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Dept./Br # A664 Acc # 7938640663 Comm # 0000042 Note # 00000141 Class
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Name XXXXXX STEEL COMPANY, an Arizona corporation Loan $500,000.00
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Rate * Interest From Renewal of Note 59
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Collateral S/A EQUIPMENT DTD 9/15/94
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*BANK ONE, ARIZONA, NA, PRIME RATE PLUS .50% TO MOVE WITH PRIME
BANK ONE, ARIZONA, NA
LINE OF CREDIT NOTE
(VARIABLE RATE)
Phoenix, Arizona June 30, 1995
FOR VALUE RECEIVED, the undersigned ("Borrower"), promises to pay on or
before June 30, 1996 to BANK ONE, ARIZONA, NA ("Bank"), or order, the aggregate
principal amount outstanding on Borrower's revolving line of credit as shown on
Bank's records which shall at all times be conclusive and govern, with interest
payable monthly on the unpaid balance outstanding from time to time at an annual
rate equal to one-half* percent (0.500%) more than the "prime rate" of interest
charged by Bank One, Arizona, N.A., as such rate shall change from time to time
during the term hereof. Interest is to be charged on a daily basis for the
actual number of days the principal is outstanding from the date of disbursement
to date of maturity. The rate of interest agreed to shall include the interest
rate as shown above, in accordance with the terms of this note, plus any
compensating balance requirement and any additional charges, costs and fees
incident to this loan to the extent they are deemed to be interest under
applicable Arizona law. Bank and Xxxxxxxx will establish specific instructions
and procedures by which draws against said credit will be presented for
disbursement, but nothing contained herein shall create a duty on the part of
Bank to make said disbursement if Borrower is in default. This note does not
evidence a revolving line of credit and the undersigned shall not be entitled to
total disbursements hereunder exceeding FIVE HUNDRED THOUSAND AND NO/100THS
DOLLARS ($500,000.00). All amounts payable hereunder shall be paid in lawful
money of the United States. Should the rate of interest as calculated under this
note exceed that allowed by law, the applicable rate of interest will be the
maximum rate of interest allowed by applicable law.
Principal and interest shall be payable at the Commercial Banking
Center office of Bank One, Arizona, NA in Phoenix, Arizona, or at such other
place as the holder hereof may designate. At Bank's option, any payments may be
applied first to accrued interest and then to principal. All past-due payments
of principal or interest shall bear interest from their due date until paid at a
rate of interest 2% per annum higher than the interest rate specified above or
12% per annum, whichever is higher, payable on demand.
This note shall become immediately due and payable at the option of the
holder hereof without presentment or demand or any notice to Borrower or any
other person obligated hereon, upon default in the payment of any of the
principal hereof or any interest thereon when due, or in payment under any other
agreement between Borrower and Bank, or if any event occurs or condition exists
which authorized the acceleration of the maturity hereof under any security
agreement, mortgage, deed of trust or other agreement made by Borrower in favor
of Bank. Failure to exercise this option shall not constitute a waiver of the
right to exercise the same in the event of any subsequent default.
* SEE ATTACHED ADDENDUM
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In the event any holder hereof utilizes the services of an attorney in
attempting to collect the amounts due hereunder or to enforce the terms hereof
or of any agreements related to this indebtedness, or if any holder hereof
becomes party plaintiff or defendant in any legal proceeding in relation to the
property described in any instrument securing this note or for the recovery or
protection of the indebtedness evidenced hereby, Borrower, its successors and
assigns, shall repay to such holder hereof, on demand, all costs and expenses so
incurred, including reasonable attorneys' fees, including those costs, expenses
and attorneys' fees incurred after the filing by or against the Borrower of any
proceeding under any chapter of the Bankruptcy Act, or similar federal or state
statute, and whether incurred in connection with the involvement of any holder
hereof as creditor in such proceedings or otherwise.
Borrower and all sureties, endorsers and guarantors of this note waive
demand, presentment for payment, notice of nonpayment, protest, notice of
protest and all other notice, filing of suit and diligence in collecting this
note or the release of any party primarily or secondarily liable hereon and
further agree that it will not be necessary for any holder hereof, in order to
enforce payment of this note by any of them, to first institute suit or exhaust
its remedies against any maker or others liable herefor, and consent to any
extension or postponement of time of payment of this note or any other
indulgence with respect hereto without notice thereof to any of them.
Bank and Xxxxxxxx will establish specific instructions and procedures
by which draws against said credit will be presented for disbursement, but
nothing contained herein shall create a duty on the part of Bank to make said
disbursement if Borrower is in default.
Address:
XXXXXX STEEL COMPANY, an Arizona corporation
POST OFFICE BOX 39670
PHOENIX, AZ 85069
SEE ATTACHED ADDENDUM FOR SIGNATURES
XXXXX X. XXXXXX, CHAIRMAN
OR
SEE ATTACHED ADDENDUM FOR SIGNATURES
XXXXX X. XXXXXX, PRESIDENT
Dept./Br #A664 Acct# 7938640665 Comm #0000042 Note #00000141 Class
Name XXXXXX STEEL COMPANY, an Arizona corporation Loan $500,000.00
Rate* Interest from June 30, 1995 Renewal of Note 59
*Bank One, Arizona NA, Prime Rate Plus .50% TO MOVE WITH PRIME
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ADDENDUM TO LINE OF CREDIT NOTE, DATED JUNE 30, 1995, 1995 ("ORIGINAL NOTE"),
BETWEEN XXXXXX STEEL COMPANY, AN ARIZONA
CORPORATION ("BORROWER") AND BANK ONE, ARIZONA, NA, A NATIONAL BANKING
ASSOCIATION ("BANK"), IN THE ORIGINAL PRINCIPAL AMOUNT OF $500,000.00.
This Addendum is hereby incorporated into the Original Note as if fully
set forth therein. This Addendum and the Original Note shall be read together as
a consistent agreement. To the extent of any necessary inconsistency between the
two, however, the terms and provisions of this Addendum shall control. The
integrated agreement of the Original Note and this Addendum is herein called the
Note.
SECTION 1. RECITALS.
1.1 In the Loan Agreement, dated JUNE 30, 1995 ("LOAN AGREEMENT"),
between Borrower and Bank, Bank has agreed to extend to Borrower credit up to
$500,000.00. Borrower may obtain advances (individually an "ADVANCE" and
collectively the "ADVANCES") as provided in the Loan Agreement.
1.2 Interest on Advances, as provided in the Note, is at the rate per
annum ("VARIABLE RATE") equal to sum of (i) one half percent (0.50%) and (ii)
the rate per annum most recently publicly announced by Bank, or its successors,
in Phoenix, Arizona, as its "prime rate", as in effect from time to time. The
Variable Rate will change on each day that the "prime rate" changes. The "prime
rate" is not necessarily the best or lowest rate offered by Bank, and Bank may
lend to its customers at rates that are at, above, or below its "prime rate".
1.3 Under the Note, the maturity date on which all Advances, interest,
and any other Amounts payable by Borrower is due and payable is June 30, 1996
("MATURITY DATE").
1.4 The purpose of this Addendum is to grant to Borrower the option to
periodically make elections (i) to extend the Maturity Date as to a Term-Out
Amount (as defined below) of the then unpaid advances that are not then a for a
term between one and five years from the election and (ii) to select the
Cariable Rate or the Fixed Rate (as defined below) as the interest rate on the
Term-Out Amount, all as more specifically provided in this Addendum.
SECTION 2 DEFINITIONS. As used in the Note:
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized to close in Phoenix, Arizona, and, with respect to a Fixed Rate
Loan Term-Out Amount, a day on which dealings are carried on in the London
interbank market.
"EXTENDED MATURITY DATE" means, as to a Term-Out Amount, the last day
of the respective Term-Out Period.
"FIXED RATE" means the rate per annum equal to the sum of (i) two and
three-quarters percent (2.75%) per annum, and (ii) the rate of interest
determined by Bank, based on Telerate System reports (Page 3807) or such other
source as may be selected by Bank, to be the rate at which deposits in United
States dollars are offered by major banks in London, England, to other major
banks in the London interbank market at 11:00 a.m. (London, England, local time)
on the first day of the Interest Period for the period in the London interbank
market equal to or next greater than the Interest Period.
"FIXED RATE LOAN TERM-OUT AMOUNT" means an amount for which a Term-Out
Period (as defined below) is chosen.
"TERM-OUT PERIOD" means, for each Term-Out Amount, a period of one year
and no more than five (5) years commencing on the Term-Out Effective Date and
ending on the last day of at least such period, all as selected by borrower as
provided herein, provided, however, that:
(a) Term-Out Periods commencing on the same date shall be of the same
duration;
(b) Whenever the last day of any Term-Out Periods would otherwise occur
on a day other than a Business Day, the last day of the Term-Out Period shall be
extended to occur on the next succeeding Business Day, provided, however, that
if the extension would cause the last day of the Term-Out Period to occur in the
next following calendar month, the last day of the Term-out Period shall occur
on the next preceding Business Day;
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(c) No Term-Out Period shall extend beyond the June 30, 2002.
SECTION 3 TERM-OUT, PAYMENTS, AND INTEREST RATE.
3.1 Except to the extent that unpaid Advances are included in a
Term-out Amount, interest shall accrue on unpaid Advances at the variable Rate,
borrower shall pay to Bank accrued and unpaid interest monthly on the date
specified in the Note, and Borrower shall pay to Bank all then outstanding
principal, interest thereon, an Other Amounts payable to Bank on the Maturity
Date.
3.2 In connection with any Advance, Borrower may elect on any Business
Day, upon notice that is received by Bank not later than 12:00 p.m. (Phoenix,
Arizona, local time) on such Business Day, that such Advance shall be a Fixed
Rate Term-Out Amount (defined below). Each such notice shall specify (i) the
date of such Advance, (ii) the amount of such Advance, and (iii) the Term-Out
Amount Period . In addition, Borrower may on any Business Day, upon notice that
is received by Bank not later than 12:00 p.m. (Phoenix, Arizona local time) on
such Business Day, convert any amount previously advanced under the Loan
Agreement from one type of Loan into the other type of Loan or continue a Fixed
Rate Term-Out as a Fixed Rate Loan for a new Interest Period, provided, that
Borrower may make an election to convert a Fixed Rate Term-out Amount to a
Variable Rate Term-Out Amount or to continue a Fixed Rate Term-Out as a Fixed
Rate Amount only on the last day of the Term-Out Period. Each such notice of
conversion or continuation shall specify (i) the date of such conversion or
continuation, (ii) the amount to be converted or continued, and (iii) if
applicable, the Term-Out Period. Any Advance not complying with the foregoing
requirements for an Advance bearing interest at the Fixed Rate Term-Out Amount
shall bear interest at the Variable Rate. Any Fixed Rate Term-Out not continued
as a Fixed Rate Term-Out Amount in compliance with the foregoing requirements
shall, after the end of the Term-Out Amount, bear interest at the Variable Rate,
whether or not Borrower has elected to convert the Fixed Rate Term-Out Amount to
a Variable Rate Loan.
3.4 Interest at the Variable Rate shall be computed on the basis of a
365 day year and accrue on a daily basis for the actual number of days elapsed.
Interest at the Fixed Rate shall be computed on the basis of a 360 day year and
shall accrue on a daily basis for the actual number of days elapsed.
3.5 Notwithstanding any provision of the Loan Agreement to the
contrary:
3.5.1 Bank shall be entitled to fund and maintain its funding of
all or any part of any Fixed Rate Loan Term-Out Amount in any manner it sees
fit.
3.5.2 If prior to the commencement of any Term-Out Period, Bank
determines by reason of circumstances affecting the London interbank market,
adequate and reasonable means do not exist for ascertaining the Fixed Rate for
such Term-Out Period in the manner provided in the definition of "Fixed Rate",
then Bank shall promptly give notice thereof to Borrower and the respective
amount as to which Borrower has requested the Term-Out Amount shall bear
interest at the Variable Rate.
3.5.3 Each Term-Out Amount shall be at least $100,000, provided,
however, that the last Term-Out Amount, may at the option of Borrower, be a
lesser amount.
SECTION 4. PREPAYMENT AND CONVERSION PREMIUM. Borrower may prepay the
outstanding principal balance hereof, in whole or in part, at any time prior to
the Maturity Date. With any such prepayment of a Fixed Rate Term-Out Amount
other than extend the maturity date or with a conversion election of a Fixed
Rate Loan to a Variable Rate Loan, in either case other than on the last
Business Day of the Term-Out Period for such Fixed Rate Loan Term-Out Amount
("INTEREST PERIOD TERMINATION DATE") (whether made voluntarily or involuntarily
as a result of an acceleration of the Maturity Date or otherwise), Borrower
shall also pay (a) all accrued and unpaid interest on the principal being
prepaid, (b) all Other Amounts then due, and (c) a prepayment premium, if any,
equal to the product of (i) the Average Lost Monthly Interest Income and (ii)
the number of months from the date of prepayment to the Term-Out Period
Termination Date (with any fraction of a month counted as a month), discounted
to present value at the Discount Rate over a period equal to one-half of the
number of months in (ii) above. At the option of Bank, in its absolute and sole
discretion, any prepayment shall be applied to installments coming due under the
Note in the inverse order of their due dates.
As used in this SECTION 4:
"AVERAGE LOST MONTHLY INTEREST INCOME" means the amount determined by
dividing (i) the product of the Average Principal and the Lost Rate, by (ii) 12,
where:
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"AVERAGE PRINCIPAL" means the amount equal to either (i) one half the
sum of (A) the amount of principal being prepaid and (B) the amount of principal
that is scheduled to be due on the Extended Maturity Date ("BALLOON AMOUNT"), or
(ii) the amount of principal being prepaid, if such amount is less than the
Balloon Amount; and
"LOST RATE" means the rate per annum equal to the percentage, if any,
by which (i) the yield to maturity of United States Treasury debt obligations
having a maturity date nearest to the Interest Period Termination Date
("TREASURY OBLIGATIONS") determined as of the first day of the respective
Term-Out Period exceeds (ii) the yield to maturity of Treasury Obligations
determined on the date of prepayment.
"DISCOUNT RATE" means the rate per annum equal to the yield to maturity
of Treasury Obligations determined on the date of prepayment.
"OTHER AMOUNTS" means all amounts payable by Borrower to Bank under
this Note and all other documents related to any indebtedness of Borrower to
Bank.
The maturity date and yield to maturity of Treasury Obligations shall be
determined by Bank, in its absolute and sole discretion, on the basis of
quotations published in The Wall Street Journal or other comparable sources.
IN WITNESS WHEREOF, this Xxxxxxxx is executed and appended to the
Original Note as of the date thereof.
Dated June 30, 1995
XXXXXX STEEL COMPANY
an Arizona corporation
By:_______________________________
Name: XXXXX X. XXXXXX
Title: PRESIDENT
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