Exhibit 10.5
THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY HAS BEEN SUBORDINATED TO
CERTAIN OBLIGATIONS OF THE MAKER PURSUANT TO A SUBORDINATION AGREEMENT
AMONG, INTER ALIA, THE LENDERS AND THE CIT GROUP/COMMERCIAL SERVICES, INC.,
AS AMENDED FROM TIME TO TIME.
SECURED SUBORDINATED PROMISSORY NOTE
$792,840.00 July 11, 2006
FOR VALUE RECEIVED, Crown Crafts, Inc., a Delaware corporation ("Maker"),
promises to pay to the order of Banc of America Strategic Solutions, Inc., its
successors and assigns ("Lender"), the original principal sum of SEVEN HUNDRED
NINETY TWO THOUSAND EIGHT HUNDRED FORTY and No/100 Dollars ($792,840.00),
without interest thereon, in two equal installments of THREE HUNDRED NINETY SIX
THOUSAND FOUR HUNDRED TWENTY and No/100 Dollars ($396,420.00) each, with the
first such installment to be paid on the fourth anniversary of the date hereof
and the second such installment to be paid on the fifth anniversary of the date
hereof.
1. Acceleration of Payment.
(a) The entire indebtedness evidenced by this Secured Subordinated
Promissory Note (the "Note") shall, at the option of Lender and upon notice to
Maker, at once become due and payable and may be collected forthwith, regardless
of the stipulated date of maturity, in the event that (i) Maker fails to pay any
principal hereunder on the date such payment is due, (ii) Maker fails to pay any
other amount due hereunder within three (3) Business Days (as hereinafter
defined) after the date such payment is due, (iii) there shall occur a Change in
Control (as hereinafter defined), or (iv) there shall occur a Bankruptcy Event
(as hereinafter defined).
(b) For purposes hereof, "Change in Control" shall mean one or more of
the following shall have occurred:
(i) a merger or consolidation of Maker with or into another
corporation other than a merger or consolidation (A) with a subsidiary of
Maker; (B) in which (1) the holders of voting stock of Maker immediately
prior to the merger as a class continue to hold immediately after the
merger at least a majority of all outstanding voting power of the surviving
or resulting corporation or its parent and (2) all holders of each
outstanding class or series of voting stock of Maker immediately prior to
the merger or consolidation have the right to receive substantially the
same cash, securities or other property in exchange for their voting stock
of Maker as all other holders of such class or series; (C) in connection
with which E. Randall Chestnut shall serve as Chief Executive Officer of
the surviving or resulting corporation or its parent; or (D) in connection
with which a majority of the persons serving on the board of directors of
the surviving or resulting corporation or its parent shall be persons who
were members of the Board of Directors of Maker immediately prior to such
merger or consolidation;
(ii) the sale or other disposition of all or substantially all of
the assets of Maker (in one transaction or a series of transactions); or
(iii) the liquidation or dissolution of Maker.
(c) For purposes hereof, "Bankruptcy Event" shall mean one or more of
the following shall have occurred:
(i) Maker (A) shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its property, or (B) shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or (C) shall make a general
assignment for the benefit of creditors, or (D) shall fail generally, or
shall admit in writing its inability, to pay its debts as they become due,
or (E) shall take any corporate action to authorize any of the foregoing;
or
(ii) an involuntary case or other proceeding shall be commenced
against Maker seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of sixty (60)
days, or an order for relief shall be entered against Maker under the
federal bankruptcy laws as now or hereafter in effect.
2. Manner of Payment.
(a) Each date upon which a payment hereunder must be made (whether
stated, defined or accelerated) shall be referred to herein as a "Payment Date."
Any payment hereunder which is due on a Payment Date which is not a Business Day
(as hereinafter defined) shall be made on the next succeeding Business Day. As
used herein "Business Day" shall mean any day other than a Saturday or Sunday or
a day on which banks in New York, New York are authorized or required by law to
be closed.
(b) Each payment hereunder shall be by wire transfer of immediately
available funds to an account designated by Lender prior to the applicable
Payment Date.
(c) If any amount hereunder shall not be paid when due (whether prior
to or on the date specified in this Note or by acceleration or otherwise),
interest shall accrue on such overdue amounts to the extent permitted by law at
the rate of five percent (5%) per annum from the date due to and including the
date of actual payment (after as well as before judgment).
3. Subordination of Note. This Note is subject in all respects to that
certain Subordination Agreement of even date herewith to which The CIT
Group/Commercial Services, Inc. ("CIT") and Lender, among others, are parties.
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4. Guaranty; Security Agreement and Mortgages. This Note is one of three
Notes (collectively, the "Notes") issued to Wachovia Bank, National Association,
Banc of America Strategic Solutions, Inc. and The Prudential Insurance Company
of America (collectively, the "Lenders"). Churchill Weavers, Inc., Hamco, Inc.
and Crown Crafts Infant Products, Inc. (collectively, the "Subsidiary
Guarantors") are executing and delivering a Guaranty of even date herewith (the
"Guaranty") pursuant to which they jointly and severally and unconditionally
guaranty the prompt payment in full of all obligations under the Notes. In
addition, as security for the prompt payment in full of all obligations under
the Notes, (i) Maker and each of the Subsidiary Guarantors are executing and
delivering a Security Agreement of even date herewith (the "Security Agreement")
in favor of Wachovia Bank, National Association, in its capacity as collateral
agent for the Lenders (in such capacity, the "Lender Agent"), pursuant to which
they pledge and grant to the Lender Agent, for the ratable benefit of the
Lenders, a continuing, general lien upon, and security interest and security
title in and to, all of the Collateral (as defined in that certain Financing
Agreement of even date herewith among CIT, Maker and the Subsidiary Guarantors
(the "Senior Debt Agreement")) and (ii) Churchill Weavers, Inc. is executing and
delivering a mortgage (the "Mortgage") on the Real Estate (as defined in the
Senior Debt Agreement) in favor of the Lender Agent, for the ratable benefit of
the Lenders, the liens and security titles under the Security Agreement and the
Mortgage being junior to the liens and security titles granted by Maker and the
Subsidiary Guarantors in connection with the Senior Debt Agreement.
5. Waivers of Maker. Maker hereby waives (a) all presentments, demands for
performance, notice of nonperformance (except to the extent specifically
required by the provisions hereof), (b) any requirement of diligence or
promptness on the part of Lender in the enforcement of its rights under this
Note, (c) except to the extent specifically required by other provisions of this
Note, any and all notices of every kind and description which may be required to
be given by any statute or rule of law, and (d) any defense of any kind which it
may now or hereafter have with respect to its liability under this Note.
6. Prepayments. Subject to the subordination provisions hereof, Maker may
prepay the principal amount of this Note in whole or in part without penalty.
7. Interest Limited by Law. If from any circumstances whatsoever, Maker is
at any time required or obligated to pay interest at a rate in excess of the
maximum rate prescribed by any applicable usury statute or any other applicable
law, then, ipso facto, the obligation to be fulfilled shall be reduced to such
maximum rate, so that in no event shall any payment be possible under this Note
that is in excess of such maximum rate.
8. Severability. Each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Note.
9. Waiver and Amendment. Any provision of this Note may be amended, waived
or modified upon the written consent of Maker and Lender.
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10. Assignment. The rights and obligations of Maker and Lender hereunder
shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of the parties; provided, that Maker may not assign its
obligation hereunder without the prior written consent of the Lender.
11. Heading; References. All headings used herein are used for convenience
only and shall not be used to construe or interpret this Note. Except where
otherwise indicated, all references herein to Sections refer to Sections hereof.
12. Effectiveness of Waiver by Lender. No waiver by Lender of any default
shall be effective unless in writing, nor shall it operate as a waiver of any
other default or of the same default on a future occasion. No delay or omission
by Lender in exercising any of its rights, remedies, powers and privileges
hereunder or at law and no course of dealing between Lender and Maker or any
other person shall be deemed a waiver by Lender of any of such rights, remedies,
powers and privileges even if such delay or omission is continuous or repeated,
nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise thereof by Lender or the
exercise of any other right, remedy, power or privilege by Lender.
13. Attorneys' Fees. If this Note is placed in the hands of any attorney
for collection, or if collected by suit or through any bankruptcy or other legal
proceedings, Maker hereby agrees to pay all reasonable expenses actually
incurred by Lender with respect thereto, including, without limitation,
attorneys' fees, all of which shall become a part of the principal hereof.
14. Remedies Cumulative. The remedies of Lender as provided herein and in
any other documents governing or securing repayment hereof shall be cumulative
and concurrent and may be pursued singly, successively or together, at the sole
discretion of Lender, and may be exercised as often as occasion therefore shall
arise.
15. Applicable Law. This Note shall be construed in accordance with the
laws of the State of New York without giving effect to the conflict of law
principles thereof.
16. Notice. Any notice, request, instruction or other document to be given
hereunder by any party hereto to any other party hereto must be in writing and
delivered personally (including by overnight courier) or sent by certified mail
(postage pre-paid and return receipt requested), or be transmitted by facsimile:
If to Maker: Crown Crafts, Inc.
916 S. Burnside Avenue
Gonzales, Louisiana 70737
Attention: Mr. E. Randall Chestnut
Facsimile No.: (225) 647-9112
If to Lender: Banc of America Strategic Solutions, Inc.
NY1-503-05-06
335 Madison Ave.
New York, New York 10017
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Attention: Kevin M. Behan, SVP
Facsimille No.: (704) 602-3609
or to such other address as may be specified from time to time in a notice given
by such party. All notices and other communications required or permitted
hereunder shall be deemed given when delivered personally, mailed by certified
mail (postage pre-paid and return receipt requested), sent by overnight courier
or faxed (transmission confirmed), or otherwise actually received.
[signature on following page]
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IN WITNESS WHEREOF, Maker has executed this Note as of the date first above
written.
MAKER:
CROWN CRAFTS, INC.
By: /s/ E. Randall Chestnut
------------------------------------
E. Randall Chestnut
President and Chief Executive
Officer
ACKNOWLEDGEMENT OF LENDER
Lender hereby acknowledges and agrees that (a) as additional consideration
for Maker's issuance of this Note to Lender, Lender has delivered to Maker for
cancellation that certain Series B Common Stock Purchase Warrant of Maker dated
July 23, 2001, as issued to Lender on April 29, 2003, and (b) upon cancellation
of such Warrant by Maker, Lender shall have no options, warrants, scrip, rights
to subscribe for, calls or commitments of any character whatsoever relating to,
or securities or rights convertible into or exchangeable for, shares of the
capital stock of Maker.
BANC OF AMERICA STRATEGIC
SOLUTIONS, INC.
By: /s/ Jason Cipriani
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Its: Principal