EXHIBIT 4.1
-----------
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT (the
"Amendment") is made as of the 31st day of October, 1996, by and between XXXX,
Inc., a New York corporation (the "Borrower") and NationsBank, N.A. (South),
formerly NationsBank of Georgia, N.A., a national banking association (the
"Lender"),
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender are parties to that certain Second
Amended and Restated Loan Agreement dated as of October 13, 1994 (the "Loan
Agreement"); and
WHEREAS, the Borrower has requested and the Lender has agreed to increase
the principal amount available to the Borrower under the Revolving Loan as
defined in the Loan Agreement and to revise and amend certain other provisions
of the Loan Agreement;
NOW THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree to revise and amend the Loan Agreement, further agree that
all capitalized terms used herein shall have the meanings ascribed thereto in
the Loan Agreement, and further agree as follows:
1. Amendments to Article I. Article I of the Loan Agreement, Particular
----------------------- -----------
Terms and Definitions, is hereby amended by deleting the existing definitions
----------------------
of "Commitment," "Loans" and "Note" in their entireties and by substituting the
following in lieu thereof:
"Commitment: That certain agreement dated September 29, 1994, between the
----------
Borrower and the Lender, as accepted by the Borrower on September 29, 1994, a
copy of which is attached hereto as Exhibit 'A,' as amended
and supplemented by that certain agreement dated October 25,
1996, between the Borrower and the Lender, a copy of which
is attached as Exhibit 'A' to the First Amendment to the
Loan Agreement dated as of October 31, 1996 by and between
the Borrower and the Lender."
"Loan Amount: Revolving Loan - Up to $10,000,000.
-----------
Term Loan - The Term Loan has been paid off.
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"Note: The Amended and Restated Promissory Note, dated as of
----
October 31, 1996 (the 'Revolving Note') in the principal amount of its Loan
Amount made by the Borrower to the order of the Lender."
2. Amendments to Article III.
-------------------------
a. Article III of the Loan Agreement, Covenants of the Borrower, is
-------------------------
hereby amended by deleting the existing Section 3.09 in its entirety and by
substituting the following in lieu thereof:
"3.09 The Borrower will maintain, at the end of each fiscal quarter,
Current Assets of at least two hundred percent (200%) of
Current Liabilities. "Current Assets" shall mean cash on
hand and in bank accounts, accounts receivable, inventory,
prepaid expenses that will be charged against operations
within a twelve (12) month period from the date of which
Current Assets are to be determined, and such other assets
as may be properly classified as Current Assets in
accordance with GAAP. The term "Current Liabilities" shall
mean all indebtedness maturing on demand or within twelve
(12) months from the date as of which Current Liabilities
are to be determined and which liabilities are not renewable
or extendable by the terms thereof beyond such twelve (12)
months, and other liabilities as may properly be classified
in accordance with GAAP."
b. Article III of the Loan Agreement, Covenants of the Borrower, is
-------------------------
hereby amended by deleting the existing Section 3.10 in its entirety and
substituting in lieu thereof: "[RESERVED]."
c. Article III of the Loan Agreement, Covenants of the Borrower, is
-------------------------
hereby amended by deleting the existing Section 3.11 in its entirety and by
substituting the following in lieu thereof:
"3.11 The Borrower will maintain a Debt to Tangible Net Worth Ratio
of not more than 1.25 to 1.0 on March 31, 1996, and during
each fiscal quarter thereafter. "Debt" shall be defined as
Total Liabilities. "Tangible Net Worth" shall be defined as
the total Capital Stock plus Paid-in-Capital plus Retained
Earnings
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net of Treasury Stock and net of foreign currency
translation adjustments, less the intangible values shown on
the annual audited statement of the Borrower for patents,
goodwill, debt discounts, deferred charges and pre-operating
or start-up costs."
d. Article III of the Loan Agreement, Covenants of the Borrower, is
-------------------------
hereby amended by deleting the existing Section 3.12 in its entirety and by
substituting the following in lieu thereof:
"3.12 The Borrower will maintain a minimum Net Worth of no less than Forty
Million Dollars ($40,000,000) plus seventy-five percent (75%) of
----
the cumulative, positive Net Income generated from March 31, 1996 to the end of
such fiscal quarter during which the computation of Net Worth is
being made; provided, however, that during any fiscal quarter
-------- -------
during which the Borrower institutes and/or maintains a monetary dividend
payment on its Capital Stock, sixty-five percent (65%) of the
Net Income generated for such fiscal quarter instead of seventy-
five percent (75%) of the Net Income generated shall be included
in the computation of Net Worth. 'Net Worth' shall be defined as
the Total Capital Stock of the Borrower plus the Borrower's Paid-
in-Capital plus Retained Earnings of the Borrower, net of the
Borrower's Treasury Stock and net of foreign currency translation
adjustments; 'Net Income' shall be defined as net income of the
Borrower and its subsidiaries on a consolidated basis determined
in accordance with GAAP."
e. Article III of the Loan Agreement, Covenants of the Borrower, is
-------------------------
hereby amended by deleting the existing Section 3.13 in its entirety and by
substituting the following in lieu thereof:
"3.13 The Borrower will maintain as of the end of each fiscal quarter a
Funded Debt to Cash Flow Ratio of not more than 2.25 to 1.0.
'Cash Flow' shall be defined as Net Income of the Borrower for
the most recently completed four (4) fiscal quarters, plus, to
the extent deducted in determining Net Income, the sum of each of
the following for such period: (a) depreciation and amortization
allowances, (b) interest expense (net of any interest income) and
(c) income tax expense. 'Funded Debt' shall be defined as Debt
for money
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-3-
borrowed and Debt represented by notes payable and drafts
accepted representing extensions of credit, all obligations
evidenced by bonds, debentures, notes or other similar
instruments, all Debt upon which interest charges are customarily
paid, all Capitalized Lease Obligations, all reimbursement
obligations with respect to outstanding letters of credit, all
Debt issued or assumed as full or partial payment for property or
services (other than trade payables arising in the ordinary
course of business, but only if and so long as such accounts are
payable on customary trade terms), whether or not any such notes,
drafts, obligations or Debt represent Debt for money borrowed,
and, without duplication, guaranties of any of the foregoing."
f. Article III of the Loan Agreement, Covenants of the Borrower, is
-------------------------
hereby amended by deleting the existing Section 3.14 in its entirety and by
substituting the following in lieu thereof:
"3.14 The Borrower will not make or incur Capital Expenditures and Capital
Lease Obligations in excess of four million dollars
($4,000,000.00) in the aggregate during any fiscal year of the
Borrower without the prior written consent of the Lender."
3. Amendment to Article V. Section 5.1 of Article V, General Covenants,
---------------------- ------------------
is hereby amended by deleting the existing Section 5.1 in its entirety and by
substituting the following in lieu thereof:
"5.1 The Borrower agrees to pay the Lender an unused fee on the
aggregate unborrowed balance of the Revolving Loan, for each day
from December 1, 1996 until the Revolving Loan maturity date, at
a rate of one-quarter of one percent (1/4%) per annum. Such
unused fee shall be computed on the basis of a year of 365/366
days for the actual number of days elapsed, shall be billed
quarterly in arrears on the last day of each calendar quarter,
commencing on December 31, 1996, shall be fully earned when due,
and shall be non-refundable when paid. A final payment of any
unused fee then payable shall also be due and payable on the
Revolving Loan maturity date."
4. Counterparts. This Amendment may be executed in any number of
------------
counterparts, each of which shall be deemed to be an
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original, but all such separate counterparts shall together constitute but one
and the same instrument.
5. Governing Law. This Amendment shall be construed in accordance with
-------------
and governed by the laws of the State of Georgia.
6. Severability. Any provision of this Amendment which is prohibited or
------------
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof in that
jurisdiction or affecting the validity or enforceability of such provision in
any other jurisdiction.
7. No Other Amendment or Waiver. Except for the amendments set forth
----------------------------
above and the amendment and restatement of the Original Promissory Note pursuant
to the Amended and Restated Promissory Note dated of even date herewith (the
"Revolving Note"), the text of the Loan Agreement and all other Loan Documents
shall remain unchanged and in full force and effect. No waiver by the Lender
under the Loan Agreement or any other Loan Document is granted or intended
except as expressly set forth herein, and the Lender expressly reserves the
right to require strict compliance in all other respects. Except as set forth
herein and in the Revolving Note, the amendments agreed to herein shall not
constitute a modification of the Loan Agreement or any of the other Loan
Documents, or a course of dealing with the Lender, at variance with the Loan
Agreement or any of the other Loan Documents, such as to require further notice
by the Lender to require strict compliance with the terms of the Loan Agreement
and the other Loan Documents in the future.
8. Representations and Warranties. The Borrower hereby represents and
------------------------------
warrants in favor of the Lender as follows:
a. The Borrower has the power and authority (i) to enter into this
Amendment and the Revolving Note and (ii) to do all other acts and things as are
required or contemplated hereunder to be done, observed and performed by it;
b. This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officials of the Borrower and constitutes
the legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, subject, as to enforcement of remedies,
to the following qualifications: (i) an order of specific performance and an
injunction are discretionary remedies and, in particular, may not be available
where damages are considered an adequate remedy at law, and (ii) enforcement may
be limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting enforcement of creditors' rights
generally
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-5-
(insofar as any such law relates to the bankruptcy, insolvency or similar event
of the Borrower); and
c. The execution and delivery of this Amendment, the performance by
the Borrower under the Loan Agreement and the other Loan Documents to which it
is a party, as amended hereby and as set forth in the Revolving Note, do not and
will not require the consent or approval of any regulatory authority or
governmental authority or agency having jurisdiction over the Borrower which has
not already been obtained, nor is in contravention of or in conflict with the
articles of incorporation or similar agreement of the Borrower, or the provision
of any statute, judgment, order, indenture, instrument, agreement, or
undertaking, to which the Borrower is a party or by which any of its assets or
properties are or may become bound.
9. Conditions Precedent. The effectiveness of this Amendment is subject
--------------------
to the prior fulfillment of each of the following conditions:
a. The Lender has received a duly executed Revolving Note in
substantially the form attached hereto as Exhibit "B", which promissory note
-----------
shall be deemed to be a "Note" under the Loan Agreement and the other Loan
Documents for all purposes hereafter;
b. The Lender shall have received payment of the loan fee in the
amount of $11,250.00; and
c. The Lender shall have received all such other documents as the
Lender may reasonably request, certified by an appropriate governmental official
or an authorized official if so reasonably requested.
10. Effective Date. Upon satisfaction of the conditions precedent
--------------
referred to in Section 9 above, this Amendment shall be effective as of October
31, 1996.
11. Loan Documents. This document shall be deemed to be a Loan Document
--------------
for all purposes.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned Borrower has hereunto caused this
Amendment to be executed by its duly authorized officials and its seal to be
affixed hereto as of the day and year first above written.
BORROWER
XXXX, INC., a New York corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Title: CFO
------------------------------------
Attest: /s/ Xxxxx X. Pembroke
-----------------------------------
[CORPORATE SEAL]
As to the Borrower, signed, sealed
and delivered in the presence of:
/s/ Xxxxxxxx X. Xxxxxxxxx
-----------------------------------
Unofficial Witness
/s/ Xxxx X. Xxxxx
-----------------------------------
Notary Public
[NOTARY SEAL]
XXXX, INC.
31631174.W51 FIRST AMENDMENT TO SECOND
C08799.0027 AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 1
IN WITNESS WHEREOF, the undersigned Lender has hereunto caused this
Amendment to be executed by its duly authorized official and its seal to be
affixed hereto as of the day and year first above written.
LENDER
NATIONSBANK, N.A. (SOUTH), formerly
NationsBank of Georgia, N.A., a national
banking association
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
As to the Lender, signed, sealed
and delivered in the presence of:
/s/ Xxxxxxx Xxxxxxxxxxx
-----------------------------------
Unofficial Witness
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Notary Public
[NOTARY SEAL]
XXXX, INC.
31631174.W51 FIRST AMENDMENT TO SECOND
C08799.0027 AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 2
EXHIBIT "A"
TO
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
Amendments and Supplements to Commitment
Financial Strategies Group
000 Xxxxxxxxx Xxxxxx, X.X. - 00xx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax 000 000-0000
NationsBank
December 1, 1996
Xx. Xxxxxx Xxxxxxx
Chief Financial Officer
XXXX, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Dear Xxx:
NationsBank hereby extends the latest date of closing for the
Revolver referenced in my letter to you dated October 25, 1996.
This Revolver should be closed no later than December 31, 1996.
Sincerely,
/s/ Xxxx Xxxx
Xxxx Xxxx
Senior Vice President
31631174.W51
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EXHIBIT "B"
Form of Revolving Note
AMENDED AND RESTATED PROMISSORY NOTE
Date: October 31, 0000 Xxxxxx: $10,000,000.00 Maturity Date: October 31,
1999
WHEREAS, pursuant to that certain Promissory Note dated December 9, 1992, as
amended by that certain Note Modification Agreement dated December 16, 1993, as
further amended by that certain Second Note Modification Agreement dated October
13, 1994 (as amended, the "Original Promissory Note"), XXXX, INC., a New York
corporation ("Borrower") obtained from NATIONSBANK, N.A. (SOUTH) (hereinafter,
together with its successors and assigns, called the "Lender"), a revolving loan
not to exceed Four Million Five Hundred Thousand Dollars ($4,500,000.00) with a
maturity date of October 31, 1996;
WHEREAS, Borrower and Lender are parties to that certain Second Amended and
Restated Loan Agreement dated as of October 13, 1994 as amended by First
Amendment thereto dated as of October 31, 1996 (as amended, the "Loan
Agreement");
WHEREAS, Borrower has requested that the Original Promissory Note be modified to
increase the amount, extend the maturity date thereof and as otherwise
hereinafter set forth and Lender has agreed to such modification;
NOW THEREFORE, in consideration of the mutual covenants and agreements contained
herein, one and no/100 dollar ($1.00) and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
Lender and the Borrower agree that all capitalized terms used herein shall have
the meanings ascribed thereto in the Loan Agreement and further to amend and
restate the Original Promissory Note subject to the terms and conditions set
forth herein.
FOR VALUE RECEIVED, Borrower promises to pay to the order of Lender, at
NationsBank, N.A. (South), X.X. Xxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
or such other place as Lender may designate in writing to the Borrower, without
set-off, counterclaim or reduction of any kind, the principal sum of TEN MILLION
AND 00/100s DOLLARS ($10,000,000.00) of United States funds, or, if less, so
much thereof as may from time to time be advanced by Lender to Borrower and is
outstanding hereunder, plus interest as hereinafter provided.
THIS NOTE IS GIVEN IN REPLACEMENT OF THE ORIGINAL PROMISSORY NOTE AND SHALL NOT
CONSTITUTE A NOVATION WITH RESPECT TO SUCH NOTES OR THE INDEBTEDNESS EVIDENCED
THEREBY.
1. RATE. The Rate shall be, at Borrower's option, the Prime Rate, the LIBOR
Basis or the LIBOR 30-day Rate.
PRIME RATE. The Prime Rate, plus zero percent (0%), per annum. The "Prime
Rate" is the fluctuating rate of interest established by Lender from time to
time, at its discretion, whether or not such rate shall be otherwise published.
The Prime Rate is established by Lender as an index and may or may not at any
time be the best or lowest rate charged by Lender on any loan.
LIBOR BASIS. The LIBOR Basis shall mean a simple per annum interest rate
(rounded upward, if necessary, to the nearest one-hundredth (1/100th) of one
percent) equal to the sum of (a) the quotient of (i) the LIBOR Rate divided by
(ii) one minus the LIBOR Reserve Percentage, stated as a decimal, plus (b) the
Applicable Margin. The "LIBOR Rate" is, for any advance for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1% appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in United States Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "LIBOR Rate" shall mean, for any
advance for any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page
as the London interbank offered rate for deposits in United States Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
--------
however, if more than one rate is specified on Reuters Screen LIBO Page, the
-------
applicable rate shall be the arithmetic mean of such rates. The "Interest
Period" is thirty (30) days. Notwithstanding the foregoing, however, (i) any
applicable Interest Period which would otherwise end on a day which is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day, (ii) any applicable Interest
Period which begins on a day for which there is
31631174.W51
C08799.0027
no numerically corresponding day in the calendar month during which such
Interest Period is to end shall (subject to clause (i) above) end on the last
day of such calendar month, and (iii) no Interest Period shall extend beyond the
Maturity Date or such earlier date as would interfere with the repayment
obligations of the Borrower hereunder. The "LIBOR Reserve Percentage" is the
percentage which is in effect from time to time under Regulation D of the Board
of Governors of the Federal Reserve System, as such regulation may be amended
from time to time, as the maximum reserve requirement applicable with respect to
Eurocurrency Liabilities (as that term is defined in Regulation D), whether or
not Lender has any such Eurocurrency Liabilities subject to such reserve
requirement at that time. The LIBOR Basis for any advance shall be adjusted as
of the effective date of any change in the LIBOR Reserve Percentage.
LIBOR 30-DAY RATE. The LIBOR 30-day Rate shall mean a simple per annum interest
rate equal to the sum of the LIBOR 30-day Rate plus the Applicable Margin. The
"LIBOR 30-day Rate" shall be the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1% appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in United States Dollars
at approximately 11:00 a.m. (London time) on the first Business Day of each
month for a thirty day period. If for any reason such rate is not available,
the term "LIBOR 30-day Rate" shall mean the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in United States Dollars at
approximately 11:00 a.m. (London time) on the first Business Day of each month
for a thirty (30) day period; provided, however, if more than one rate is
-------- -------
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of such rates. "Business Day" is a day on which banks are not
authorized or required to be closed and foreign exchange markets are open for
the transaction of business required for this Agreement in Atlanta, Georgia and
London, England, as relevant to the determination to be made or the action to be
taken.
APPLICABLE MARGIN. The Applicable Margin, expressed as a per annum rate of
interest, shall be (i) one and nine-tenths percent (1.9%) whenever the ratio of
Funded Debt to Cash Flow is greater than 1.5 to 1.0 or if the ratio of Debt to
Tangible Net Worth exceeds 1.0 to 1 or (ii) one and one-half percent (1.5%)
--
whenever the ratio of Funded Debt to Cash Flow is less than 1.5 to 1.0 and if
the ratio of Debt to Tangible Net Worth is less than 1.0 to 1. The Applicable
Margin shall be the interest rate margin determined by Lender based upon the
ratios for the most recent fiscal quarter end, effective as of the first
Business Day of the month after the financial statements referred to in
Section 3.6 of the Loan Agreement are required to be furnished by Borrower to
Lender for the fiscal quarter most recently ended.
Notwithstanding any provision of this Note, Lender does not intend to charge and
Borrower shall not be required to pay any amount of interest or other charges in
excess of the maximum permitted by the applicable law of the State of Georgia;
if any higher rate ceiling is lawful, then that higher rate ceiling shall apply.
Any payment in excess of such maximum shall be refunded to Borrower or credited
against principal, at the option of Lender.
NationsBank, N.A. (South) Amended and Restated Promissory Note
[Commercial] -1- 11/96
22910737.W51
2. ACCRUAL METHOD. Interest at the Rate set forth above will be calculated by
the 365/360 day method (a daily amount of interest is computed for a
hypothetical year of 360 days; that amount is multiplied by the actual number of
days for which any principal is outstanding hereunder).
3. RATE CHANGE DATE. Any Rate based on a fluctuating index or base rate will
change, unless otherwise provided, each time and as of the date that the index
or base rate changes. In the event any index is discontinued, Lender shall
substitute an index determined by Lender to be comparable, in its sole
discretion.
4. PAYMENT SCHEDULE. All payments received hereunder shall be applied first
to the payment of any expense or charges payable hereunder or under any other
loan documents executed in connection with this Note, then to interest due and
payable, with the balance applied to principal, or in such other order as Lender
shall determine at its option. Principal shall be paid in full in a single
payment on October 31, 1999. Interest thereon shall be paid monthly, on the
first day of each Interest Period, and continuing on the first day of each
successive month thereafter, with a final payment of all unpaid interest at the
stated maturity of this Note.
5. REVOLVING FEATURE. Borrower may borrow, repay and reborrow hereunder at
any time, up to a maximum aggregate amount outstanding at any one time equal to
the principal amount of this Note, provided that Borrower is not in default
under any provision of this Note, any other documents executed in connection
with this Note, or any other note or other loan documents now or hereafter
executed in connection with any other obligation of Borrower to Lender, and
provided that the borrowings hereunder do not exceed any borrowing base or other
limitation on borrowings by Borrower. Lender shall incur no liability for its
refusal to advance funds based upon its determination that any conditions of
such further advances have not been met. Lender records of the amounts borrowed
from time to time shall be conclusive proof thereof.
6. AUTOMATIC PAYMENT. Borrower has elected to authorize Lender to effect
payment of sums due under this Note by means of debiting Borrower's account
number 00000000. This authorization shall not affect the obligation of Borrower
to pay such sums when due, without notice, if there are insufficient funds in
such account to make such payment in full on the due date thereof, or if Lender
fails to debit the account.
7. WAIVERS, CONSENTS AND COVENANTS. Borrower, any indorser or guarantor
hereof, or any other party hereto (individually an "Obligor" and collectively
"Obligors") and each of them jointly and severally: (a) waive presentment,
demand, protest, notice of demand, notice of intent to accelerate, notice of
acceleration of maturity, notice of protest, notice of nonpayment, notice of
dishonor, and any other notice required to be given under the law to any Obligor
in connection with the delivery, acceptance, performance, default or enforcement
of this Note, any indorsement or guaranty of this Note, or any other documents
executed in connection with this Note or any other note or other loan documents
now or hereafter executed in connection with any obligation of Borrower to
Lender (the "Loan Documents"); (b) consent to all delays, extensions, renewals
or other modifications of this Note or the Loan Documents, or waivers of any
term hereof or of the Loan Documents, or release or discharge by Lender of any
of Obligors, or release, substitution or exchange of any security for the
payment hereof, or the failure to act on the part of Lender, or any indulgence
shown by Lender (without notice to or further assent from any of Obligors), and
agree that no such action, failure to act or failure to exercise any right or
remedy by Lender shall in any way affect or impair the obligations of any
Obligors or be construed as a waiver by Lender of, or otherwise affect, any of
Lender's rights under this Note, under any indorsement or guaranty of this Note
or under any of the Loan Documents; and (c) agree to pay, on demand, all costs
and expenses of collection or defense of this Note or of any indorsement or
guaranty hereof and/or the enforcement or defense of Lender's rights with
respect to, or the administration, supervision, preservation, or protection of,
or realization upon, any property securing payment hereof, including, without
limitation, reasonable attorney's fees, including fees related to any suit,
mediation or arbitration proceeding, out of court payment agreement, trial,
appeal, bankruptcy proceedings or other proceeding, in such amount as may be
determined reasonable by any arbitrator or court, whichever is applicable.
8. "INTEREST" LIMITED. As used in this Note and for the purposes of Section
7-4-2 of the Official Code of Georgia Annotated, or any successor thereto, the
term "interest" does not include any fees (including, but not limited to, the
Loan Fee) or other charges imposed on Borrower in connection with the
indebtedness evidenced by this Note, other than the interest described above.
9. PREPAYMENTS. Prepayments may be made in whole or in part at any time on
any loan for which the Rate is based on the Prime Rate. All prepayments of
principal shall be applied in the inverse order of maturity, or in such other
order as Lender shall determine in its sole discretion. No prepayment of any
other loan shall be permitted without the prior written consent of Lender.
Notwithstanding such prohibition, if there is a prepayment of any such loan,
whether by consent of Lender, or because of acceleration or otherwise, Borrower
shall, within 15 days of any request by Lender, pay to Lender any loss or
expense which Lender may incur or sustain as a result of such prepayment. For
the purposes of calculating the amounts owed only, it shall be assumed that
Lender actually funded or committed to fund the loan through the purchase of an
underlying deposit in an amount and for a term comparable to the loan, and such
determination by Lender shall be conclusive, absent a manifest error in
computation.
10. DELINQUENCY CHARGE. To the extent permitted by law, a delinquency charge
may be imposed in an amount not to exceed four percent (4%) of any payment that
is more than fifteen days late.
11. EVENTS OF DEFAULT. The following are events of default hereunder: (a) the
failure to pay or perform any obligation, liability or indebtedness of any
Obligor to Lender, or to any affiliate or subsidiary of NationsBank
Corporation, whether under this Note or any Loan Documents, as and when due
(whether upon demand, at maturity or by acceleration); (b) the failure to pay or
perform any other obligation, liability or indebtedness of any Obligor to any
other party; (c) the death of any Obligor (if an individual); (d) the
resignation or withdrawal of any partner or a material owner/guarantor of
Borrower, as determined by Lender in its sole discretion; (e) the commencement
of a proceeding against any Obligor for dissolution or liquidation, the
voluntary or involuntary termination or dissolution of any Obligor or the merger
or consolidation of any Obligor with or into another entity; (f) the insolvency
of, the business failure of, the appointment of a custodian, trustee, liquidator
or receiver for or for any of the property of, the assignment for the benefit of
creditors by, or the filing of a petition under bankruptcy, insolvency or
debtor's relief law or the filing of a petition for any adjustment of
indebtedness, composition or extension by or against any Obligor; (g) the
determination by Lender that any representation or warranty made to Lender by
any Obligor in any Loan Documents or otherwise is or was, when it was made,
untrue or materially misleading; (h) the failure of any Obligor to timely
deliver such financial statements, including tax returns, other statements of
condition or other information, as Lender shall request from time to time; (i)
the entry of a judgment against any Obligor which Lender deems to be of a
material nature, in Lender's sole discretion; (j) the seizure or forfeiture of,
or the issuance of any writ of possession, garnishment or attachment, or any
turnover order for any property of any Obligor; (k) the determination by Lender
that it is insecure for any reason; (l) the determination by Lender that a
material adverse change has occurred in the financial condition of any Obligor;
or (m) the failure of Borrower's business to comply with any law or regulation
controlling its operation.
12. REMEDIES UPON DEFAULT. Whenever there is a default under this Note (a) the
entire balance outstanding hereunder and all other obligations of any Obligor to
Lender (however acquired or evidenced) shall, at the option of Lender, become
immediately due and payable and any obligation of Lender to permit further
borrowing under this Note shall immediately cease and terminate, and/or (b) to
the extent permitted by law, the Rate of interest on the unpaid principal shall
be increased at Lender's discretion up to the maximum rate allowed by law, or if
none, 25% per annum (the "Default Rate"). The provisions herein for a Default
Rate shall not be deemed to extend the time for any payment hereunder or to
constitute a "grace period" giving Obligors a right to cure any default. At
Lender's option, any accrued and unpaid interest, fees or charges may, for
purposes of computing and accruing interest on a daily basis after the due date
of the Note or any installment thereof, be deemed to be a part of the principal
balance, and interest shall accrue on a daily compounded basis after such date
at the Default Rate provided in this Note until the entire outstanding balance
of principal and interest is paid in full. Upon a default under this Note,
Lender is hereby authorized at any time, at its option and without notice or
demand, to set off and charge against any deposit accounts of any Obligor (as
well as any money, instruments, securities, documents, chattel paper, credits,
claims, demands, income and any other property, rights and
NationsBank, N.A. (South) Amended and Restated Promissory Note
[Commercial] -2- 11/96
22910737.W51
interests of any Obligor), which at any time shall come into the possession or
custody or under the control of Lender or any of its agents, affiliates or
correspondents, any and all obligations due hereunder. Additionally, Lender
shall have all rights and remedies available under each of the Loan Documents,
as well as all rights and remedies available at law or in equity.
13. NON-WAIVER. The failure at any time of Lender to exercise any of its
options or any other rights hereunder shall not constitute a waiver thereof, nor
shall it be a bar to the exercise of any of its options or rights at a later
date. All rights and remedies of Lender shall be cumulative and may be pursued
singly, successively or together, at the option of Lender. The acceptance by
Lender of any partial payment shall not constitute a waiver of any default or of
any of Lender's rights under this Note. No waiver of any of its rights
hereunder, and no modification or amendment of this Note, shall be deemed to be
made by Lender unless the same shall be in writing, duly signed on behalf of
Lender; each such waiver shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of Lender or the obligations of
Obligors to Lender in any other respect at any other time.
14. APPLICABLE LAW, VENUE AND JURISDICTION. This Note and the rights and
obligations of Borrower and Lender shall be governed by and interpreted in
accordance with the law of the State of Georgia. In any litigation in
connection with or to enforce this Note or any indorsement or guaranty of this
Note or any Loan Documents, Obligors, and each of them, irrevocably consent to
and confer personal jurisdiction on the courts of the State of Georgia or the
United States located within the State of Georgia and expressly waive any
objections as to venue in any such courts. Nothing contained herein shall,
however, prevent Lender from bringing any action or exercising any rights within
any other state or jurisdiction or from obtaining personal jurisdiction by any
other means available under applicable law.
15. PARTIAL INVALIDITY. The unenforceability or invalidity of any provision of
this Note shall not affect the enforceability or validity of any other provision
herein and the invalidity or unenforceability of any provision of this Note or
of the Loan Documents to any person or circumstance shall not affect the
enforceability or validity of such provision as it may apply to other persons or
circumstances.
16. BINDING EFFECT. This Note shall be binding upon and inure to the benefit
of Borrower, Obligors and Lender and their respective successors, assigns, heirs
and personal representatives, provided, however, that no obligations of Borrower
or Obligors hereunder can be assigned without prior written consent of Lender.
17. CONTROLLING DOCUMENT. To the extent that this Note conflicts with or is
in any way incompatible with any other document related specifically to the loan
evidenced by this Note, this Note shall control over any other such document,
and if this Note does not address an issue, then each other such document shall
control to the extent that it deals most specifically with an issue.
18. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN
THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY
PARTY TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF ANY
BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT, AGREEMENT
OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF
J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN
THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL
BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL BE
DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR
DOCUMENT; OR (II) BE A WAIVER BY LENDER OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE
RIGHT OF LENDER HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH
AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT
OF A RECEIVER. Lender MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
Borrower represents to Lender that the proceeds of this loan are to be used
primarily for business, commercial or agricultural purposes. Borrower
acknowledges having read and understood, and agrees to be bound by, all terms
and conditions of this Note and hereby executes this Note under seal as of the
date here above written.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
XXXX, INC., a New York corporation
By: /s/ Xxxxxx X. Xxxxxxx (Seal)
----------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------
Title: CFO
-------------------------
Attest: /s/ Xxxxx X. Pembroke
------------------------
Name: XXXXX X. PEMBROKE
--------------------------
Title: CORPORATE CONTROLLER
-------------------------
[Corporate Seal]
NationsBank, N.A. (South) Amended and Restated Promissory Note
[Commercial] -3- 11/96
22910737.W51
