PROMISSORY NOTE
Borrower: Engineered Wire Products, Inc. Lender: Bank One, N A with its main office at Columbus, Ohio
1200 N. Warpole Street Lima Business Banking LPO
Upper Sandusky, OH 43351 121 W High Street. 2nd Floor
Lima, OH 45801
Principal Amount: $6,750,000.00 Date of Note: January 5, 2004
PROMISE TO PAY. Engineered Wire Products. Inc. ("Borrower") promises to pay to
Bank One, N.A. with its main office at Columbus, Ohio ("Lender"), or order, in
lawful money of the United States of America, the principal amount of Six
Million Seven Hundred Fifty Thousand & 00/100 Dollars ($6,750,000.00), together
with interest on the unpaid principal balance from January 5, 2004, until paid
in full.
PAYMENT Borrower will pay this loan in 59 principal payments of $112,500.00 each
and one final principal and interest payment in an amount sufficient to pay this
Note in full, Borrower first principal payment is due January 30. 2004. and all
subsequent principal payments are due on the some day of each month after that.
In addition, Borrower will pay regular monthly payments of all accrued unpaid
interest due as of each payment dote, beginning January 30, 2004, with all
subsequent Interest payments to be due on the same day of each month after that.
Borrower's final payment due December 30. 2008, will be for all principal and
alt accrued interest not yet paid Payments and any other credits shall be
allocated among principal, interest and fees at the discretion of Lender unless
otherwise required by applicable law The annual interest rate for this Note Is
computed on a 365/360 basis: that is, by applying the ratio of the annual
interest rate over a year of 360 days, multiplied by the outstanding principal
balance, multiplied by the actual number of days the principal balance is
outstanding. Borrower will pay Lender at Lender's address shown on loan account
statements sent to the Borrower, Lender's address shown in any payment coupon
book provided to the Borrower, or at such other place as Lender may designate in
writing
VARIABLE INTEREST RATE The interest rate on this Note is subject to change from
time to time based on changes in an index which is the LIBOR Rate (the "Index').
"LIBOR Rate" shall mean the offered rate for U S Dollar deposits of not less
than $1,000,000 00 for a period of time equal to each Interest Period as of 11
00 A M City of London, England time two London Business Days prior to the first
date of each interest Period of this Note as shown on the display designated as
"British Bankers Assoc Interest Settlement Rates" on the Telerate System
('Telerate"). Page 3750 or Page 3740. or such other page or pages as may replace
such pages on Telerate for the purpose of displaying such rate. Provided,
however, that if such rate is not available on Telerate then such offered rate
shall be otherwise independently determined by Lender from an alternate,
substantially similar independent source available to Lender or shall be
calculated by Lender by a substantially similar methodology as that theretofore
used to determine such offered rate in Tolerate "London Business Day" means any
day other than a Saturday, Sunday or a day on which banking institutions are
generally authorized or obligated by low or executive order to close in the City
of London, England Each change in the rate to be charged on this Note will
become effective without notice on the commencement of each interest Period
based upon the Index then in effect. "Interest Period" means each consecutive
one month period (the first of which shall commence on the date of this Note)
effective as of the first day of each Interest Period and ending on the last day
of each interest Period, provided that if any Interest Period is scheduled to
end on a date for which there is no numerical equivalent to the date on which
the Interest Period commenced, then it shall end instead on the last day of such
calendar month. Borrower may prepay all or any portion of the principal amount
of this Note bearing interest at a LIBOR Rate, provided that if Borrower makes
any such prepayment other than on the lest day of an Interest Period, Borrower
shall pay all accrued interest on the principal amount prepaid with such
prepayment and, on demand, shall reimburse Lender and hold Lender harmless from
all losses and expenses incurred by Lender as a result of such prepayment,
including, without limitation, any losses and expenses arising from the
liquidation or reemployment of deposits acquired to fund or maintain the
principal amount prepaid. Such reimbursement shall be calculated as though
Lender funded the principal amount prepaid through the purchase of U.S. Dollar
deposits in the London, England interbank market having a maturity corresponding
to such Interest Period and bearing an interest rate equal to the LIBOR Rate for
such Interest Period, whether in fact that is the case or not Lender's
determination of the amount of such reimbursement shall be conclusive in the
absence of manifest error The interest rate to be applied to the unpaid
principal balance of this Note will be at a rate of 2.500 percentage points over
the Index NOTICE Under no circumstances will the interest rate on this Note be
more then the maximum rate allowed by applicable law
PREPAYMENT, Borrower may pay without tee all or a portion of the principal
amount owed hereunder earlier than it is due. All prepayments shall be applied
to the Indebtedness in such order and manner as Lender may from time to time
determine in its sole discretion. Borrower agrees not to send Lender payments
marked "paid in full", `without recourse", or similar language If Borrower sends
such a payment, Lender may accept it without losing any of Lender's rights under
this Note. and Borrower will remain obligated to pay any further amount owed to
Lender. All written communications concerning disputed amounts, Including any
check or other payment instrument that indicates that the payment constitutes
'payment in full" of the amount owed or that is tendered with other conditions
or limitations or as full satisfaction of a disputed amount must be mailed or
delivered to Bank One Business Banking Loan Servicing Disputed Accounts
Department, P 0 Box 901094 Fort Worth, TX 76101-2094.
LATE CHARGE If a payment is 10 days or more late, Borrower will be charged 5
000% of the regularly scheduled payment or $25 00, whichever is greater
INTEREST AFTER DEFAULT, Upon the occurrence of any Event of Default, including
failure to pay upon final maturity, at Lender's option, and if permitted by
applicable law. Lender may add any unpaid accrued Interest to principal and such
sum will bear interest therefrom until paid at the rate provided in this Note
(including any increased rate) Upon the occurrence of any Event of Default,
Lender, at its option, may, if permitted under applicable law, increase the
variable interest rate on this Note to 5 500 percentage points over the index
The interest rate will not exceed the maximum rate permitted by applicable law
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default') under this Note
Payment Default. Borrower fails to make any payment when due under this Note.
Other Defaults. Borrower falls to comply with or to pay or perform any other
term, obligation, covenant or condition contained in this Note or in any of the
Related Documents or to comply with or to pay or perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Borrower or between Borrower and any affiliate of BANK ONE CORPORATION
Transfer of Assets Borrower leases, sells, or otherwise conveys, or agrees to
lease, sell, or otherwise convey, a material part of its assets or business
outside of the ordinary course of business
Defaults with Respect to Third Parties. Borrower fails to make any payment when
due or fails to comply with or to perform any term, obligation, covenant or
condition contained in any agreement between any other person and Borrower
False Statements. Any warranty, representation or statement made or furnished to
Lender by Borrower or on Borrower's behalf under this Note or the Related
Documents Is false or misleading in any material respect, either now or at the
time made or furnished or becomes false or misleading at any time thereafter
Judgments or Decrees. One or more judgments or decrees shall be entered against
the Borrower and such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal
Insolvency. The dissolution or termination of Borrower's existence as a going
business, the insolvency of Borrower, the appointment of a receiver for any part
of Borrower's property, any assignment for the benefit of creditors, any type of
creditor workout, or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Borrower
Creditor or Forfeiture Proceedings. Commencement of foreclosure, replevin,
repossession, attachment, levy, execution, or forfeiture proceedings, whether by
judicial proceeding, self-help, or any other method, by any creditor of
Borrower, or by any governmental agency against the Collateral or any other
assets of Borrower. This includes a garnishment of any of Borrower's accounts,
including deposit accounts, with Lender However, this Event of Default shall not
apply if there is a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or forfeiture
proceeding and d Borrower gives Lender written notice of the creditor or
forfeiture proceeding and deposits with Lender monies or a surety bond for the
creditor or forfeiture proceeding, in an amount determined by Lender, in its
sole discretion, as being an adequate reserve or bond for the dispute
Failure to Comply with Laws Borrower fails to comply with all applicable
statutes, laws, ordinances and governmental rules, regulations and orders to
which it is subject or which are applicable to its business, property and
assets.
Change In Ownership. Any change in ownership of twenty-five percent (25%) or
more of the common stock of Borrower.
Adverse Change A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of this
Note is impaired
Events Affecting Guarantor, Any of the preceding Events of Default occurs with
respect to any guarantor of the Indebtedness as if the word "guarantor" were
substituted for the word "Borrower" in such Event of Default, or any guarantor
dies or becomes incompetent, or revokes or disputes the validity of, or
liability under, any guaranty. Insecurity. Lender in good faith believes itself
insecure
LENDER'S RIGHTS. Upon the occurrence of any Event of Default. Lender may declare
the entire unpaid principal balance on this Note and the Indebtedness and all
accrued unpaid interest immediately due, without notice (except that in the case
of any Event of Default of the type described in the DEFAULT - insolvency
section herein, such acceleration shall be automatic and not at Lender's
option), and then Borrower will pay that amount Borrower shall be liable for any
deficiency remaining after disposition of any collateral which Lender may choose
to realize upon
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Note if Borrower does not pay Borrower will pay Lender that amount. This
includes, subject to any limits under applicable law, Lender's attorneys' fees
and Lender's legal expenses, whether or not there is a lawsuit, including
attorneys' fees, expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), and appeals If not
prohibited by applicable law. Borrower also will pay any court costs, in
addition to all other sums provided by law.
GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with federal law end the laws of the State of Ohio. This Note has
been accepted by Lender in the State of Ohio
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to
submit to the jurisdiction of the courts of Allen County, State of Ohio
CONFESSION OF JUDGMENT. Borrower hereby irrevocably authorizes and empowers any
attorney-at-law, including an attorney hired by Lender, to appear in any court
of record and to confess judgment against Borrower for the unpaid amount of this
Note as evidenced by an affidavit signed by an officer of Lender setting forth
the amount then due, attorneys' fees plus costs of suit, and to release all
errors, and waive all rights of appeal. If a copy of this Note, verified by an
affidavit, shall have been filed in the proceeding, it will not be necessary to
file the original as a warrant of attorney. Borrower waives the right to any
stay of execution and the benefit of all exemption laws now or hereafter in
effect. No single exercise of the foregoing warrant and power to confess
judgment will be deemed to exhaust the power, whether or not any such exercise
shall be held by any court to be invalid, voidable, or void, but the power will
continue undiminished and may be exercised from time to time as Lender may elect
until all amounts owing on this Note have been paid in full Borrower waives any
conflict of interest that an attorney hired by Lender may have in acting on
behalf of Borrower in confessing judgment against Borrower while such attorney
is retained by Lender Borrower expressly consents to such attorney acting for
Borrower in confessing judgment
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $26.00 if Borrower
makes a payment on Borrower's loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF Borrower grants to Lender a security interest in, as well as a
right of setoff against, and hereby assigns, conveys, delivers, pledges and
transfers to Lender, as security for repayment of the Indebtedness, all
Borrower's right, title and interest in and to all Borrower's accounts (whether
checking, savings, or some other account) with Lender or any subsidiary or
affiliate of BANK ONE CORPORATION (each hereinafter referred to as a 'Lender
Affiliate') and all other obligations at any time owing by Lender or any Lender
Affiliate to Borrower. This includes all accounts Borrower holds jointly with
someone else and all accounts Borrower may open in the future However, this does
not include any IRA or Keogh accounts, or any trust accounts for which the grant
of a security interest would be prohibited by law. Borrower authorizes Lender,
without prior notice to Borrower and irrespective of (i) whether or not Lender
has made any demand under this Note or the Related Documents or (i) whether such
Indebtedness is contingent, matured or unmetured, to the extent permitted by
law, to collect, charge and/or setoff all sums owing on the Indebtedness against
any and all such accounts and other obligations, and, at Lender's option, to
administratively freeze or direct a Lender Affiliate to administratively freeze
all such accounts and other obligations to allow Lender to protect Lender's
security interest, collection, charge and setoff rights provided in this
paragraph
COLLATERAL. Borrower acknowledges this Note is secured by security interest in
and hen upon all collateral described in any Related Document
LATE CHARGES. In the 'Late Charge" provision set forth above, the following
language is hereby added after the word "greater" "up to the maximum amount of
Two Hundred Fifty Dollars (8260.00) per late charge"
FINANCIAL STATEMENTS. Borrower shall furnish Lender with such financial
statements and other related information at such frequencies and in such detail
as Lender may reasonably request
ENFORCEABILITY AND ORGANIZATION. Borrower is duly authorized to transact
business in all states in which Borrower is doing business, having obtained all
necessary filings, governmental licenses and approvals for each state in which
Borrower is doing business. Borrower's execution, delivery and performance of
this Note and all the Related Documents have been duty authorized by all
necessary action by Borrower This Note and all the Related Documents constitute
legal, valid and binding obligations of Borrower enforceable against Borrower in
accordance with their respective terms If applicable, Borrower is an entity
which is, and at all times shall be, duly organized, validly existing, and in
good standing under and by virtue of the laws of the state of its organization.
INFORMATION WAIVER. Lender may provide, without any limitation whatsoever, to
any one or more purchasers, potential purchasers, or affiliates of BANK ONE
CORPORATION, any information or knowledge Lender may have about the undersigned
or about any matter relating to this document and the Related Documents, and the
undersigned hereby waives any right to privacy the undersigned may have with
respect to such matters
INDEBTEDNESS. The word "Indebtedness" means all principal, interest, and other
amounts, costs and expenses payable under the Note or Related Documents,
together with all renewals of, extensions of, modifications of, consolidations
of and substitutions for the Note or Related Documents, together with interest
on such amounts as provided In this Note, and all obligations, debts and
liabilities, plus interest thereon, of Borrower or any one or more of them to
Lender, as well as all claims by Lender against Borrower or any one or more of
them, whether now existing or hereafter arising, whether related or unrelated to
the purpose of this Note, whether voluntary or otherwise, whether due or not
due, direct or indirect, absolute or contingent, liquidated or unliquidated and
whether Borrower may be liable Individually or jointly with others, whether
obligated as guarantor, surety, accommodation party or otherwise and whether
recovery upon such amounts may be or hereafter become barred by any statute of
limitations, end whether the obligation to repay such amounts may be or
hereafter become otherwise unenforceable, and further includes, without
limitation, all principal, interest, and other amounts, costs and expenses
payable under the Related Documents, whether executed by the Borrower or by any
other person or entity, together with all renewals of, extensions of,
modifications of, consolidations of and substitutions for the Related Documents,
together with interest thereon as provided in the Related Documents
RELATED DOCUMENTS. The words "Related Documents' mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, end all other instruments. agreements and documents, whether now
existing or hereafter arising, executed in connection with the Indebtedness
LIABILITIES FOR OBLIGATIONS UNDER RELATED DOCUMENTS. Borrower also promises to
pay to Lender all of the Indebtedness Borrower acknowledges that some of the
Related Documents, pursuant to which Indebtedness may arise, may be executed
only by persons or entities other than the Borrower
PURPOSE. Borrower agrees that no advances under this Note shall be used for
personal, family or household purposes and that all advances hereunder shall be
used solely for business, commercial, agricultural or other similar purposes.
ARBITRATION. Undersigned and Lender agree that all disputes, claims and
controversies between them whether individual, joint, or class in nature,
arising from this document or otherwise, including without limitation contract
and tort disputes, shall be arbitrated pursuant to the Rules of the American
Arbitration Association in effect at the time the claim is filed, upon request
of either party. No act to take or dispose of any Collateral or Property (as
defined herein or in any Related Document) securing this document shall
constitute a waiver of this arbitration agreement or be prohibited by this
arbitration agreement. This includes, without limitation, obtaining injunctive
relief or a temporary restraining order, invoking a power of sale under any deed
of trust or mortgage; obtaining a writ of attachment or imposition of a
receiver; or exercising any rights relating to personal property, including
taking or disposing of such property with or without judicial process pursuant
to applicable law Any disputes, claims, or controversies concerning the
lawfulness or reasonableness of any act, or exercise of any right, concerning
any Collateral or Property securing this document, including any claim to
rescind, reform, or otherwise modify any agreement relating to the Collateral or
Property securing this document, shall also be arbitrated, provided however that
no arbitrator shall have the right or the power to enjoin or restrain any act of
any party Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction Nothing in this document shall preclude any party
from seeking equitable relief from a court of competent jurisdiction. The
statute of limitations, estoppel, waiver, Itches, and similar doctrines which
would otherwise be applicable in an action brought by a party shall be
applicable in any arbitration proceeding, and the commencement of an arbitration
proceeding shall be deemed the commencement of an action for these purposes The
Federal Arbitration Act shall apply to the construction, interpretation, and
enforcement of this arbitration provision
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT
OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER ARISING OUT OF OR IN
ANY WAY RELATED TO THIS DOCUMENT, THE RELATED DOCUMENTS, OR ANY RELATIONSHIP
BETWEEN OR AMONG THE UNDERSIGNED AND LENDER THIS PROVISION IS A MATERIAL
INDUCEMENT TO LENDER TO PROVIDE THE FINANCING EVIDENCED BY THIS DOCUMENT AND THE
RELATED DOCUMENTS
BORROWER'S ACKNOWLEDGEMENT AND AGREEMENT REGARDING AFFILIATE BANKS. Borrower may
now or in the future have a borrowing relationship with Bank One, NA with its
main office in Columbus. Ohio (the "Bank Affiliate") Lender and Borrower intend
that the terms, covenants, conditions, warranties and obligations of Borrower in
only one agreement in the nature of a loan or credit agreement ("Loan
Agreement") be applicable to the borrowing relationship of Borrower and Lender
and of Borrower and the Bank Affiliate. Therefore, if Borrower executes a Loan
Agreement with the Bank Affiliate, the Borrower agrees that the terms,
covenants, conditions, warranties and obligations of Borrower contained in that
Loan Agreement between Borrower and the Bank Affiliate shall also apply to this
Note
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will
not affect the rest of the Note Borrower does not agree or intend to pay, and
Lender does not agree or intend to contract for, charge, collect, take, reserve
or receive (collectively referred to herein as "charge or collect"), any amount
in the nature of interest or In the nature of a fee for this loan, which would
in any way or event (including demand, prepayment, or acceleration) cause Lender
to charge or collect more for this loan than the maximum Lender would be
permitted to charge or collect by federal law or the law of the State of Ohio
(as applicable) Any such excess interest or unauthorized fee shall, instead of
anything stated to the contrary, be applied first to reduce the principal
balance of this loan, and when the principal has been paid in full, be refunded
to Borrower If any part of this Note cannot be enforced, this fact will not
affect the rest of this Note it is agreed that any payment which would otherwise
for any reason be deemed unlawful interest under applicable law shall be deemed
to have been applied to the unpaid principal balance of this Note, or to other
Indebtedness. The unpaid balance owing on this Note at any time may be evidenced
by endorsements on this Note or by Lender's internal records, including daily
computer print-outs Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in the
terms of this Note, and unless otherwise expressly stated in writing, no party
who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan or release
any party or guarantor or collateral; or impair, fail to realize upon or perfect
Lender's security interest in the collateral; and take any other action deemed
necessary by Lender without the consent of or notice to anyone All such parties
also agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made Unless
specifically permitted otherwise by the terms and conditions of this Note, no
alteration of or amendment to this Note shall be effective unless given in
writing and signed by the party or parties sought to be charged or bound by the
alteration or amendment Borrower agrees and consents to Lender's sale or
transfer, whether now or later, of this Note, or the Related Documents or of any
participation interest in this Note or Related Documents to one or more
purchasers, whether related or unrelated to Lender Borrower waives any and all
notices of sale of this Note, the Related Documents or of any participation
interests, as well as any notices of any repurchases of this Note, the Related
Documents, or of any participation interests. The obligations under this Note
are joint and several.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS BORROWER AGREES TO
THE TERMS OF THE NOTE
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
NOTICE. FOR THIS NOTICE "YOU" MEANS THE BORROWER AND "CREDITOR" AND "HIS" MEANS
LENDER
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
BORROWER:
ENGINEERED WIRE PRODUCTS. INC
Bert E. Downing. Jr., Vice President/Treasurer of Engineered Wire Products, Inc.