EXHIBIT 10.17
AMENDMENT TO
SECURED
PROMISSORY NOTE
This AMENDMENT TO SECURED PROMISSORY NOTE, is executed as of this 13th
day of July 2001 by and between OAKHURST TECHNOLOGY, INC., a corporation
organized under the laws of the State of Delaware (the "Maker") and XXXXXX X.
XXXXXX ("Holder").
WHEREAS, the Maker and the Holder entered into that certain Secured
Promissory Note dated October 18, 1999 in the principal amount of $539,117 (the
"Original Note") secured by that certain Stock Pledge Agreement dated October
18, 1999 (the "Pledge Agreement"); and
WHEREAS, the Maker and the Holder now desire to amend certain
provisions of the Original Note, including those provisions pertaining to the
principal amount, the maturity date and repayment of said note while leaving the
security for the Original Note in place;
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged and agreed, the Maker and the Holder, intending to
be legally bound, do hereby agree as follows:
1. Maturity Date; Payments. The first, second and third sentences of
the first paragraph of the Original Note are hereby amended and restated to read
in their entirety as follows:
"FOR VALUE RECEIVED, Oakhurst Technology, Inc., a corporation organized
under the laws of the State of Delaware (the "Maker"), hereby promises
to pay to the order of Xxxxxx Xxxxxx (the "Holder"), having an address
at 000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxx 00000, or
his assigns, the principal sum of six hundred seventy two thousand
Dollars ($672,003), together with interest on the unpaid principal
balance of this Note. All principal and accrued but unpaid interest
shall be due to the Holder on July 3, 2005. The Maker shall pay to the
Holder in sixteen (16) equal quarterly payments beginning on October
13, 2001, principal plus accrued interest at a rate of twelve percent
(12%) per annum; provided, that all such payments shall be made to the
extent of and out of the available Net Cash Flow and Net Cash Proceeds
(each as defined below); provided, further, that, to the extent that
accrued interest and/or principal payments cannot be made on the date
such are due on this Note, then such interest and principal will, at
the option of Oakhurst Company, Inc., a Delaware corporation ("OCI"),
be deferred until sufficient Net Cash Flow or Net Cash Proceeds are
available; provided, however, that such deferment shall not last past
July 13, 2005. Any accrued but unpaid interest on this Note shall be
added to the outstanding principal of this Note for the purpose of
computing subsequent interest payments.
"Net Cash Flow" as used hereinabove means (a) the operating cash flow
of Steel City Products, Inc. ("SCPI") or Sterling Construction Company,
a Delaware corporation ("Sterling"), to the extent permitted by such
entities' respective bank
lenders to upstream such entities' respective operating cash flows to
OCI, plus (b) the proceeds from the sale by OCI of any shares of its
common stock, par value $0.01, plus (c) the proceeds received by OCI
from the exercise by any holders of stock options, minus (d) any and
all of the foregoing amounts in (a), (b) or (c) that OCI's Board of
Directors determines, in its sole discretion, should be reserved for
payment of OCI's past, present and future corporate overhead expenses.
"Net Cash Proceeds" means (a) the net proceeds available to OCI from
the sale of assets of SCPI (other than sales of SCPI's inventory and
other sales that are made in the ordinary course of business), minus
(b) any and all of the foregoing amounts in clause (a) that OCI's Board
of Directors determines, in its sole discretion, should be reserved for
payment of OCI's past, present and future corporate overhead expenses.
Net Cash Flow shall be applied in the following order: (1) first, to
pay, pro rata, accrued interest on (i) this Note as well as any
promissory notes that result from the sale, assignment or transfer of
any portion of this Note (collectively, the "Davies First Note") and
(ii) that certain promissory note in the aggregate principal amount of
$800,000 issued by OTI to Xxxxx X. Xxxxxxx as well as any promissory
notes that result from the sale, assignment or transfer of any portion
of said note (collectively, the "Xxxxxxx Note"); (2) second, to repay,
pro rata, the remaining principal outstanding on the Davies First Note
and the Xxxxxxx Note; (3) third, upon payment in full of all accrued
interest and outstanding principal on the Davies First Note and the
Xxxxxxx Note, to pay, pro rata, accrued interest on (i) that certain
promissory note in the aggregate principal amount of $250,623 issued by
OCI to Xxxxxx X. Xxxxxx as well as any promissory notes that result
from the sale, assignment or transfer of any portion of said note
(collectively, the "Davies Second Note") and (ii) that certain
promissory note in the aggregate principal amount of $136,421 issued by
OCI to Maarten X. Xxxxxxx as well as any promissory notes that result
from the sale, assignment or transfer of any portion of said note
(collectively, the "Xxxxxxx Note"); and (4) fourth, to repay, pro rata,
the remaining principal outstanding on the Davies Second Note and the
Xxxxxxx Note.
Net Cash Proceeds shall be applied in the following order: (1) first,
to pay, pro rata, accrued interest on the Davies First Note and the
Xxxxxxx Note; (2) second, equal amounts of Net Cash Proceeds shall be
applied to the repayment of the Davies First Note and the Xxxxxxx Note,
until all accrued interest and outstanding principal on the Davies
First Note has been paid in full; (3) third, to repay the remaining
outstanding principal on the Xxxxxxx Note; (4) fourth, upon payment in
full of the Davies First Note and the Xxxxxxx Note, to pay, pro rata,
accrued interest on the Davies Second Note and the Xxxxxxx Note; and
(5) fifth, to repay, pro rata, the remaining principal outstanding on
the Davies Second Note and the Xxxxxxx Note.
If any of this Note, the Xxxxxxx Note, the Davies Second Note or the
Xxxxxxx Note (individually, a "Transferred Note") are sold, assigned or
transferred (which
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sale, assignment or transfer shall be in full compliance with
applicable securities laws) and new notes are issued to reflect such
sale, assignment or transfer (individually, a "New Note" and
collectively, "New Notes"), the amount of Net Cash Flow and Net Cash
Proceeds that would have been applied to the Transferred Note under the
terms of this Note shall be applied to the New Notes in proportion to
the total amount of accrued interest or principal, as the case may be,
owed under the New Notes at the time the computation is made."
2. Enforceability. To the extent not amended hereby, the remaining
rights, duties, obligations, terms and conditions of the Original Note as well
as the rights, duties, obligations, terms and conditions of the Pledge Agreement
shall remain in full force and effect until the principal and accrued interest
of the Original Note, as amended hereby, is paid in full.
3. Participation. Maker, Holder and Maarten X. Xxxxxxx hereby agree and
acknowledge that Xx. Xxxxxxx'x Participation (as defined in that certain
Participation Agreement, dated as of October 18, 1999, by and between the Holder
and Xx. Xxxxxxx (the "Participation Agreement")) shall be increased to $144,153.
Accordingly, Holder acknowledges that distribution of Net Cash Flow and Net Cash
Proceeds to the Original Note shall be allocated by Holder pro rata, according
to the Participation held in the Original Note by Xx. Xxxxxxx, as amended
hereby.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to
Secured Promissory Note as of the date first set forth above.
"Maker"
OAKHURST TECHNOLOGY, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
---------------------------------
"Holder"
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
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CONSENTED AND AGREED TO
BY OAKHURST COMPANY, INC.,
as Guarantor
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Senior Vice President
CONSENTED AND AGREED TO
BY MAARTEN X. XXXXXXX
/s/ Maarten X. Xxxxxxx
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