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EXHIBIT 10(D)
MODIFIED, AMENDED AND RESTATED
TERM NOTE
$2,384,395.23 Birmingham, Alabama
June 15, 2001
FOR VALUE RECEIVED, Xxxxxx Industries, Inc., a Delaware corporation
(the "Borrower"), hereby promises to pay to the order of AmSouth Bank, an
Alabama banking corporation (the "Lender"), at the Main Office of the Lender in
Birmingham, Alabama, in lawful money of the United States of America, the
principal amount of Two Million Three Hundred Eighty-Four Thousand Three Hundred
Ninety-Five and 23/100 Dollars ($2,384,395.23), in fifteen (15) consecutive
monthly installments of $158,959.68 each, the first of which shall be due and
payable on July 15, 2001, and one of which shall be payable on the 15th day of
each succeeding month in each year, to and including September 15, 2002, on
which date the entire remaining principal balance, together with accrued
interest thereon, shall be due and payable, and to pay interest from the date
hereof until payment in full on the unpaid principal balance hereof at the rate
per annum (computed on the basis of the actual number of days elapsed over an
assumed year of 360 days, as more particularly set forth below) equal to one
percentage point (100 basis points) in excess of the rate of interest designated
by the Lender from time to time as its prime rate (the "Prime Rate"), as set
forth in Section 2.03(a) of the Loan agreement (as hereinafter defined), it
being expressly understood and agreed that the Prime Rate is merely an index
rate used by the Lender to establish lending rates and that the Prime Rate is
not necessarily the Lender's most favorable lending rate. Such interest shall be
payable monthly in arrears in like money at said Main Office on the 15th day of
each month, for the period ending on that date, commencing on June 15, 2001, and
upon September 15, 2002.
Interest will be computed on the basis of an assumed year of 360 days
for the actual number of days elapsed, meaning that the interest accrued for
each day will equal the amount obtained by multiplying the stated interest rate
applicable on that day by the unpaid principal balance on that day and dividing
the result by 360. Any change in the interest rate on this note because of a
change in the Prime Rate shall take effect on the effective date of such change
in the Prime Rate as announced by the Lender without notice to the undersigned
and without any further action by the Lender. Changes in the Prime Rate are
discretionary with the Lender. The interest rate hereunder is also subject to
adjustment upon the occurrence of an Event of Default under the Loan Agreement
dated as of January 7, 1993, between the Borrower and the Lender, as amended
through June 15, 2001 (the "Loan Agreement"), and under certain circumstances
provided for in the Loan Agreement.
Upon the occurrence and during the continuance of any Event of Default
(such term and other capitalized terms used in this note that are not otherwise
defined herein having the meanings defined for them in the Loan Agreement), this
note shall bear interest (as liquidated damages and not as a penalty) at a
default interest rate equal to two percentage points (200 basis points) in
excess of the Prime Rate in effect from time to time (computed on the basis of
the actual number of days elapsed over an assumed year of 360 days, as more
particularly set forth above). In addition, if any scheduled payment is in
default for twelve (12) or more days, this note shall bear an additional
interest charge equal to two and one-half percent (2.5%) of the amount of the
payment that is in default, but not less than $10 nor more than the maximum
allowed by law. This provision shall not
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be deemed to excuse a late payment or be deemed a waiver of any other right the
Lender may have, including without limitation, the right upon the occurrence of
an Event of Default to declare the entire unpaid principal balance and accrued
interest thereon immediately due and payable.
Notwithstanding the foregoing, for the purpose of enabling the Lender
to send periodic billing statements in advance of each interest payment date
reflecting the amount of interest payable on such interest payment date, at the
option of the Lender, the Prime Rate in effect 15 days prior to each interest
payment date shall be deemed to be the Prime Rate as continuing 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 Lender elects
to use the Prime Rate 15 days prior to the interest payment date for billing
purposes, and if the Prime Rate changes during such 15-day period, the
difference between the amount of interest that in fact accrued 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 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.
This note is being executed and delivered to modify, amend and restate
in its entirety, effective as of the Effective Date of the Fifth Amendment, the
Term Note dated January 7, 1993, in the face amount of $11,934,000 (the "Initial
Note"). Notwithstanding the execution of this note, the outstanding indebtedness
evidenced by the Initial Note shall remain in full force and effect and shall
hereafter be evidenced by this note, and nothing contained herein shall be
construed as effecting any novation, payment or accord and satisfaction of such
indebtedness.
This note is the Modified, Amended and Restated Term Note referred to
in the Fifth Amendment, and is subject to all of the provisions of the Loan
Agreement, including without limitation, those providing for optional
prepayment, and acceleration by the Lender upon default, all as set forth in
said Loan Agreement. This note is executed in renewal, extension and
modification of the Initial Note, and is given in substitution therefor. The
terms of this note shall be applicable commencing on the Effective Date of the
Fifth Amendment. The terms of the Initial Note shall continue to be applicable
prior to the Effective Date. The Lender may retain the Initial Note in its file
along with this note until the indebtedness evidenced hereby has been paid in
full.
Nothing contained herein shall be construed to release, satisfy,
discharge, terminate, subordinate or otherwise adversely affect or impair (a)
the validity or enforceability of the indebtedness evidenced by the Initial
Note, as modified, amended and restated hereby, (b) the validity, perfection or
priority of the Liens of the Security Documents as security for such
indebtedness, or of any of the other Loan Documents, or (c) the liability of any
obligor for the repayment of such indebtedness.
[SIGNATURE PAGE FOLLOWS.]
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XXXXXX INDUSTRIES, INC.
By /s/ XXXXX X. XXXXXX
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Its Vice President and Chief Financial Officer
P.O. Box 128
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Taxpayer I.D.: 00-0000000
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