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EXHIBIT 10.57
PROMISSORY NOTE
U.K. (pound)6,000,000 June 5, 1997
FOR VALUE RECEIVED, the undersigned, BRITISH TRIMMINGS LIMITED, an
English company (the "Borrower"), promises to pay to the order of
NATIONSBANK, N.A., a national banking association (the "Bank") at its
London Branch (or at such other place or places as the Bank may designate with
the Borrower's written consent, such consent not to be unreasonably withheld)
the principal sum of up to
SIX MILLION POUNDS STERLING (U.K. (pound)6,000,000), or such lesser
amount as may constitute the unpaid principal amount of the Sterling Advances
(as hereinafter defined), pursuant to the terms and conditions hereinafter set
forth and the terms and conditions set forth in that certain Loan Agreement,
dated November 25, 1996, as amended (if amended), executed by and between Conso
Products Company ("Conso") and the Bank (the "Loan Agreement").
Advances. The Borrower, in accordance with the terms hereof, may from
time to time until December 1, 1998 (the "Termination Date") request offers from
the Bank for advances in U.K. Pounds Sterling (hereinafter the "Sterling
Advances") in an aggregate amount up to (pound)6,000,000 at any time outstanding
based on an interest rate equal to the Adjusted LIBOR Rate plus 1.00% per annum;
provided, however, no more than five Sterling Advances may be outstanding at any
one time. Upon receipt of such a request for a Sterling Advance hereunder, the
Bank shall make any such Sterling Advance hereunder on the terms and conditions
set forth herein and in the Loan Agreement; provided, however, the Bank shall
not be obligated to make such advance unless Conso has satisfied the conditions
set forth in Section 2.05 of the Loan Agreement. To request an offer for a
Sterling Advance hereunder, the Borrower shall make a written request of the
Bank for an offer for a Sterling Advance under this Note (hereinafter, a
"Request for Sterling Advance") not later than 11:00 a.m. (London time) on the
business day of the proposed Sterling Advance which notice shall specify (i)
that the requested Sterling Advance would be made under this Note, (ii) the date
of the requested Sterling Advance (which shall be a business day), (iii) the
amount of the requested Sterling Advance which shall be in a minimum principal
amount of (pound)250,000 and integral multiples of (pound)250,000 in excess
thereof, and (iv) the requested Interest Period with respect thereto. In
response to any such Request for a Sterling Advance, the Bank shall respond to
the Borrower by 11:30 a.m. (London time) on the business day of the proposed
Sterling Advance specifying the applicable Adjusted LIBOR Rate for such Sterling
Advance (the "Offer for Sterling Advance"). The Borrower may then by telephone
or telecopy (and if by telephone, promptly confirmed by telecopy) by 11:30 a.m.
(London time) on the business day of the proposed Sterling Advance, in its sole
discretion, accept or reject the Offer for Sterling Advance. Failure by the
Borrower to accept an Offer for
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Sterling Advance by the appropriate time shall be deemed to be rejection of such
Offer for Sterling Advance. The terms of each Sterling Advance shall be noted on
the schedule attached hereto, the terms of which shall be presumed correct
absent evidence of error; provided, however that any failure to make such
notation (or any inaccuracy in such notation) shall not limit or otherwise
affect the obligations of the Borrower hereunder. As used herein, "Interest
Period" means a period of seven days, fourteen days, one month or three months
duration as may be selected by the Borrower; provided, however, that (A) each
Interest Period which would otherwise end on a day which is not a business day
shall end on the next succeeding business day unless such succeeding business
day falls in the next calendar month and then in such case on the next preceding
business day and (B) no Interest Period shall extend beyond the Termination
Date; "Adjusted LIBOR Rate" means for the respective Interest Period, a per
annum interest rate offered by the Bank to the Borrower in accordance with the
foregoing terms equal to the per annum rate obtained by dividing (a) the rate of
interest determined by the Bank to be the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a multiple)
of the per annum rates at which deposits in U.K. Pounds Sterling are offered to
the Bank in the London interbank market at 11:30 a.m. (London time) (or as soon
thereafter as is practicable), in each case on the date of the Offer for
Sterling Advance in an amount substantially equal to the requested Sterling
Advance and for a period equal to such Interest Period by (b) a percentage
(expressed as a decimal fraction) equal to 100% minus maximum reserve
requirements which may be applicable with respect to such Sterling Advance.
Principal. The outstanding principal balance of the Sterling Advances
shall be due and payable on the earlier of the last day of its respective
Interest Period as noted on the schedule attached or the Termination Date.
Interest. Sterling Advances hereunder shall bear interest on the
outstanding balance hereunder at a per annum interest rate equal to the Adjusted
LIBOR Rate plus 1.00% per annum. Unless otherwise agreed, accrued interest with
respect to each Sterling Advance shall be payable in arrears on the last day of
an Interest Period for such Sterling Advance. Whenever a payment on this Note is
stated to be due on a day which is not a business day, such payment shall be
made on the next succeeding business day with interest accruing to the date of
payment. Interest hereunder shall be computed on the basis of actual number of
days elapsed over a year of 365 days.
Supersession. It is understood and agreed by the Bank and the Borrower
that this Note amends, restates, supplements and supersedes in all respects the
promissory note dated November 25, 1996 in the original principal amount of
(pound)5,000,000 heretofore issued by the Borrower to the Bank.
Payments. All payments made on this Note shall be in U.K. Pounds
Sterling. Subject to the conditions set forth herein and in the Loan Agreement,
amounts repaid may be reborrowed.
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Prepayments. Prepayments are not permitted prior to maturity of
Interest Periods.
Indemnification. The Borrower agrees to indemnify the Bank against all
reasonable losses, expenses and liabilities sustained by the Bank on account of
the Borrower (i) failing to accept a Sterling Advance after notice to the Bank
of its acceptance of any such Sterling Advance and (ii) making a prepayment on a
Sterling Advance prior to the last day of an Interest period.
Yield Indemnification. In the event the Bank shall determine (which
determination shall be presumed correct absent evidence of error) that:
(i) Unavailability. On any date for determining the
appropriate Adjusted LIBOR Rate for any Interest Period, that by reason
of any changes arising on or after the date of this Note affecting the
London interbank Pounds Sterling market, U.K. Pounds Sterling deposits
in the principal amount requested are not generally available in the
London interbank market or adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Adjusted LIBOR Rate then Sterling Advances hereunder
will not be available until such time as the Bank shall notify the
Borrower that the circumstances giving rise thereto no longer exist.
(ii) Increased Costs. At any time that the Bank shall
incur increased costs or reductions in the amounts received or
receivable hereunder with respect to any Sterling Advances because of
any change since the date of this Note in any applicable law,
governmental rule, regulation, guideline or order (or in the
interpretation or administration thereof and including the introduction
of any new law or governmental rule, regulation, guideline or order)
including without limitation the imposition, modification or deemed
applicability of any reserves, deposits or similar requirements as
related to such Sterling Advances (such as, for example, but not
limited to, a change in official reserve requirements, but, in all
events, excluding reserves to the extent included in the computation of
the Adjusted LIBOR Rate), then the Borrower shall pay to the Bank
promptly upon written demand therefor (which demand shall state the
basis therefor), such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as
the Bank may determine in its reasonable discretion) as may be required
to compensate the Bank for such increased costs or reductions in
amounts receivable hereunder. Upon determining in good faith that any
additional amounts will be payable pursuant to this subsection, the
Bank will give prompt written notice thereof to the Borrower, which
notice shall set forth in reasonable detail the basis of the
calculation of such additional amounts.
(iii) Illegality. At any time that the making or
continuance of any Sterling Advance has become unlawful by compliance
by the Bank in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule,
regulation, guideline or order not having the force of law even though
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the failure to comply therewith would not be unlawful), or has become
impractical as a result of a contingency occurring after the date of
this Note which materially and adversely affects the London interbank
Sterling market, then Sterling Advances will no longer be available.
Capital Adequacy. If the Bank shall have determined that the adoption
or effectiveness of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change after the date hereof in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has the effect of materially reducing the
rate of return on the Bank's capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which the Bank could
have achieved but for such adoption, effectiveness, change or compliance (taking
into consideration the Bank's policies with respect to capital adequacy), then
from time to time, within 15 days after written demand by the Bank the Borrower
shall pay to the Bank such additional amount or amounts as will compensate the
Bank for such reduction. Upon determining in good faith that any additional
amounts will be payable pursuant to this Section, the Bank will give prompt
written notice thereof to the Borrower, which notice shall set forth in
reasonable detail the basis of the calculation of such additional amounts,
although the failure to give any such notice shall not release or diminish any
of the Borrower's obligations to pay additional amounts pursuant to this
paragraph. Upon determining in good faith that any additional amounts will be
payable pursuant to this paragraph, the Bank will give prompt written notice
thereof to the Borrower, which notice shall set forth in reasonable detail the
basis of the calculation of such additional amounts. Determination by the Bank
of amounts owing under this paragraph shall, absent evidence of error, be
binding on the parties hereto. Failure on the part of the Bank to demand
compensation for any period hereunder shall not constitute a waiver of the
Bank's rights to demand any such compensation in such period or in any other
period.
Taxes. All payments made by the Borrower hereunder will be made without
(but without waiving any rights with respect to) setoff or counterclaim.
Promptly upon notice from the Bank to the Borrower, the Borrower will pay, prior
to the date on which penalties attach thereto, but without duplication, all
present and future, stamp and other taxes, levies, or costs and charges
whatsoever imposed, assessed, levied or collected on or in respect of advances
hereunder solely as a result of the interest rate being determined by reference
to the Adjusted LIBOR Rate and/or the provisions of this Note relating to the
Adjusted LIBOR Rate and/or the recording, registration, notarization or other
formalization of any thereof and/or any payments of principal, interest or other
amounts made on or in respect of advances hereunder when the interest rate is
determined by reference to the Adjusted LIBOR Rate and any increases thereof
(all such taxes, levies, costs and charges being herein collectively called
"Taxes"), provided that Taxes shall not include taxes imposed on or measured by
the income of the Bank by the United States of America or any political
subdivision or taxing authority thereof or therein, or taxes on or measured by
the overall net income of any foreign office, branch or subsidiary of the Bank
by any foreign country of subdivision thereof in which that office, branch or
subsidiary is doing
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business. Promptly after the date on which payment of any such Tax is due
pursuant to applicable law, the Borrower will at the request of the Bank,
furnish to the Bank evidence, in form and substance satisfactory to the Bank,
that the Borrower has met its obligations under this paragraph. The Borrower
will indemnify the Bank against, and reimburse the Bank on demand for, any
Taxes, as determined by the Bank in its good faith discretion. The Bank shall
provide the Borrower with appropriate receipts for any payments or
reimbursements made by the Borrowers pursuant to this Section.
Events of Default. Upon the occurrence of an Event of Default under the
Loan Agreement, (a) this Note and all other debts due the Bank by the Borrower
shall immediately become due and payable upon written notice to the Borrower
(except that in the case of any Event of Default relating to a bankruptcy
petition filed by the Borrower, this Note and all other debts due the Bank shall
become immediately due and payable without the necessity of demand or other
action by the Bank) without the necessity of any other demand, presentment,
protest or notice of any kind, all of which are hereby waived by the Borrower,
(b) the then remaining unpaid principal amount and accrued but unpaid interest
shall bear interest at a per annum rate equal to the Prime Rate plus two percent
(2%) until such principal and interest has been paid in full and (c) regardless
of the adequacy of the collateral, the Bank shall have the right, immediately
and without further action by it, to set-off against this Note all money owed by
the Bank in any capacity to the Borrower, whether or not due, and the Bank shall
be deemed to have exercised such right of set-off and to have made a charge
against any such money immediately upon the occurrence of such Event of Default
even though such charge is made or entered on the books of the Bank subsequent
thereto. For purposes hereof, the term "Prime Rate" means the floating rate of
interest publicly announced by the Bank in Charlotte, North Carolina from time
to time as its prime rate.
No Waiver. No failure or delay on the part of the Bank in the exercise
of any right, power or privilege hereunder or under any other Loan Document
shall operate as a waiver of any such right, power or privilege nor shall it
preclude any other or further exercise thereof. The Borrower assents to any one
or more extensions or postponements of the time of payment or other indulgences,
to any substitutions, exchanges or releases of collateral if at any time there
is collateral available to the holder of this Note, and to the additions or
releases of any other parties or persons primarily or secondarily liable.
Late Charge. Should any payment due hereunder be in default for more
than fifteen (15) days, there may be imposed, to the extent permitted by law, a
delinquency charge not to exceed four percent (4%) of such payment in default.
In addition, at the option of the Bank, any accrued and unpaid interest, fees or
charges may, for purposes of computing accruing interest on a daily basis after
the due date for such interest fees or charges, be deemed to be a part of the
principal balance thereof, and interest shall accrue on a daily compounded basis
after such date at the rate provided for hereunder until the entire balance of
principal and interest is paid in full.
Notices. All notices and other communications hereunder shall be
sufficiently given and
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shall be deemed given when delivered or when mailed by registered or certified
mail, postage prepaid, addressed as follows:
(a) If to the Borrower:
British Trimmings Limited
P.O. Box 46
Coronation Street
Stockport, Cheshire SK5 7TJ
England
Attn: Antony W. Laughton
Telephone: 44 161 480 6122
Telecopy: 44 161 487 3378
with a copy to:
Conso Products Company
513 North Duncan Bypass
P.O. Box 326
Union, South Carolina 29379
Attention: Mr. S. Duane Southerland, Jr.
Telephone: (864) 427-9004
Telecopy: (864) 427-8820
with a copy to:
Kennedy Covington Lobdell & Hickman, L.L.P.
NationsBank Corporate Center
Suite 4200
100 N. Tryon Street
Charlotte, North Carolina 28202-4006
Attention: Sean M. Jones
Telephone: (704) 331-7400
Telecopy: (704) 331-7598
(b) If to the Bank:
NationsBank, N.A.
London Branch
New Broad Street House
35 New Broad Street
London
EC2M 1NH, England
Telephone: 171-282-6831
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Telecopy: 171-282-6836
with a copy to:
NationsBank, N.A.
NationsBank Plaza, NC1-002-03-10
Charlotte, North Carolina 28255
Attention: William A. Serenius
Telephone: (704) 386-8577
Telecopy: (704) 386-1023
Attorneys' Fees. In the event this Note is not paid when due at any
stated or accelerated maturity, the Borrower will pay, in addition to principal
and interest, all costs of collection, including reasonable attorneys' fees.
Choice of Law. This Note shall be governed by and construed in
accordance with, the laws of England.
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IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by their duly authorized officers as of the day and year first above
written.
BRITISH TRIMMINGS LIMITED
ATTEST:
By: /s/ Antony W. Laughton By: /s/ C. Kirrane
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Title: Managing Director Title: Group Financial Controller
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(Corporate Seal)
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SCHEDULE A TO THE
(pound)6,000,000 PROMISSORY NOTE
DATED JUNE 5, 1997
Name of
Principal Person
Amount of Applicable Payment Making
Date Advance Interest Rate Principal Interest Notation
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