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EXHIBIT 10(LL)
MODIFIED, AMENDED AND RESTATED
LINE OF CREDIT NOTE
$10,000,000 Huntsville, Alabama
As of January 1, 2000
FOR VALUE RECEIVED, Xxxxxx Industries, Inc., a Delaware corporation
(the "Borrower"), hereby promises to pay, on the Line of Credit Termination Date
(such term and other capitalized terms used in this Note that are not otherwise
defined herein having the meanings defined for them in the hereinafter-described
Loan Agreement), to the order to AmSouth Bank, an Alabama banking corporation
(the "Lender"), at its Main Office in Birmingham, Alabama, in lawful money of
the United States of America, the principal amount of Ten Million and No/100
Dollars ($10,000,000), or so much thereof as may heretofore have been advanced
by the Lender under the Line of Credit Master Note in the face amount of
$15,000,000 (the "Initial Note"), the Modified, Amended and Restated Line of
Credit Note in the face amount of $20,000,000 (the "First Modification"), and
the Modified Amended and Restated Line of Credit Note in the face amount of
$30,000,000 (the "Second Modification") which are being extended, renewed and
modified hereby or as may hereafter be advanced under this Note, and to pay
interest from the date of this note on sums advanced under the Initial Note, the
First Modification and the Second Modification, and from the date advanced on
additional sums advanced under this Note, until payment in full, on the unpaid
principal balance of the amount advanced hereunder, 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 the applicable rate
set forth below:
1. LIBOR-BASED RATE. This Note shall bear interest at the
LIBOR-Based Rate. On the first Business Day of each month the Lender
shall determine the LIBOR-Based Rate for the then-current month, and
all outstanding Advances under this note as well as all Advances made
during such calendar month shall accrue interest at the LIBOR-Based
Rate. If in the Lender's opinion it is impossible or impractical to
obtain the LIBOR-Based Rate for a certain calendar month, all
outstanding Advances as well as all Advances made during such calendar
month shall bear interest as the Prime Rate. Such interest shall be
payable monthly in arrears on the 15th day of each month for the period
ending the last day of the immediately preceding calendar month. As
used herein (a) "LIBOR-Based Rate" shall mean a fixed rate 125 basis
points in excess of the average offered rate in the London interbank
market for deposits in U.S. dollars for thirty (30) days (the "LIBOR
Rate") as published in the Wall Street Journal or such other comparable
financial information reporting service used by the Bank at the time
such rate is determined, adjustable for any applicable LIBOR Reserve
Requirement; and (b) "LIBOR Reserve Requirement" shall mean the
percentage prescribed by the Board of Governors of the Federal Reserve
System (or any successor Government Authority), on the date on which
the LIBOR-Based Rate is determined, for determining the reserve
requirements of the Lender (including any marginal, emergency,
supplemental, special or other reserves) with respect to liabilities
relating to time deposits purchased in the London interbank market
having a one month
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maturity, without benefit or credit for any proration, exemptions or
offsets under any now or hereafter applicable regulations.
2. RECONVERSION TO PRIME RATE. If this Note bears interest at
the LIBOR-Based Rate, then the Borrower shall have a one time option
after the IPO Date to convert the interest rate applicable to this Note
from the LIBOR-Based Rate back to the Prime Rate. The Borrower may
exercise this option by giving written notice at lease 15 days prior to
the first Business Day of any calendar month. Such notice shall be
irrevocable once given and the change shall become effective upon the
first Business Day of a calendar month that occurs at least 15 days
after such notice is given. Commencing on the effective date of the
Prime Rate option, all outstanding Advances as well as all future
Advances under this Note shall bear interest at a per annum rate equal
to the Prime Rate in the same manner as set forth in paragraph 1 of
this Note.
The first monthly interest payment under this Note shall be due and
payable on February 15, 2000. Upon payment in full of this Note, all accrued
interest shall be due and payable in full.
The Lender will send the Borrower a monthly billing statement in
advance of each interest payment date (i.e. the 15th day of each month) showing
the interest that accrued on the Line of Credit through the end of the
immediately preceding month and which shall be due and payable on such interest
payment date. On the Line of Credit Termination Date, the Borrower will pay all
of the principal of and interest on the Loan then remaining unpaid.
This Note is a master note, and it is expected that the proceeds of the
loan evidenced hereby will be advanced by the Lender to the Borrower in
installments, as needed for the purposes set forth in the Loan Agreement, upon
compliance with the terms and conditions set forth therein. This Note shall be
valid and enforceable as to, and all collateral granted to the Lender as
security for the loan evidenced hereby shall be and remain valid and binding as
security for, the aggregate amount advanced at any time hereunder, whether or
not the full face amount hereof is advanced. Each principal advance and payment
on this Note may be reflected by notations made by the Lender on its internal
records (which may be kept on computer or otherwise), and the Lender is hereby
authorized to record on such records all such principal Advances and payments.
The aggregate unpaid amount reflected by the Lender's notations on its internal
records (whether on computer or otherwise) shall be deemed rebuttably
presumptive evidence of the principal amount remaining outstanding and unpaid on
this Note. No failure of the Lender so to record any Advance or payment shall
limit or otherwise affect the obligation of the Borrower hereunder with respect
to any Advance, and no payment of principal by the Borrower shall be affected by
the failure of the Lender to so record the same.
This Note is being executed and delivered to modify, amend and restate
in its entirety, effective as of the Effective Date of the Fourth Amendment, the
Line of Credit Note dated January 7, 1993 in the face amount of $15,000,000, the
First Modification dated March 15, 1995 in the face amount of $20,000,000, and
the Second Modification dated August 28, 1997 in the face
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amount of $30,000,000. Notwithstanding the execution of this Note the
outstanding indebtedness evidenced by the Initial Note, the First Modification,
and the Second Modification 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 Line of Credit Note
referred to in the Fourth Amendment to Loan Agreement and Other Loan Documents,
and is subject to all of the provisions of the Loan Agreement including those
providing for optional repayment, acceleration of maturity and adjustment of the
interest rate hereunder, all set forth in the Loan Agreement. This Note is
secured by the Security Documents, as that term is defined in the Loan
Agreement. This Note is executed in renewal, extension and modification of the
Initial Note, the First Modification and the Second Modification. The terms of
this Note shall be applicable commencing on the Effective Date. The terms of the
Initial Note, the First Modification and the Second Modification shall continue
to be applicable prior to the Effective Date. The Lender may retain the Initial
Note, the First Modification and the Second Modification in its file along with
this Note until the indebtedness evidenced hereby has been paid in full and the
Line of Credit has been terminated as set forth in the Loan Agreement.
This Note, as modified, amended and restated, shall continue to be
secured by all of the Security Documents described in the Loan Agreement, as
amended. Nothing continued 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, the First Modification and the Second Modification, 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.
XXXXXX INDUSTRIES, INC.
By: /S/ XXXXXXXX X. XXXXXXXXX
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Its: Vice President and CFO
P. O. Box 128
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Taxpayer I.D.: 00-0000000
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