EXHIBIT 10.3
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GREYSTONE MANUFACTURING, L.L.C.
TERM NOTE
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$5,500,000.00 Tulsa, Oklahoma
Effective March 4, 2005
FOR VALUE RECEIVED, the undersigned, GREYSTONE MANUFACTURING,
L.L.C., an Oklahoma limited liability company ("Borrower"), promises to pay to
the order of THE F&M BANK & TRUST COMPANY ("Bank"), the principal sum of FIVE
MILLION FIVE HUNDRED THOUSAND DOLLARS ($5,500,000.00), together with interest on
the unpaid balance from the date of the execution of this Note at the Floating
Interest Rate as defined in a loan agreement of equal date ("Loan Agreement")
between the Bank and Borrower at all times. The rate of interest payable shall
float daily and shall be adjusted daily based on the Prime Lending Rate of
Interest; provided, however, that the rate of interest payable upon the
indebtedness evidenced by this Note shall not at any time exceed the maximum
rate of interest permitted under the laws of the State of Oklahoma for loans of
the type and character evidenced by this Note. Interest shall be paid on the
actual number of days elapsed over a 360-day calendar year.
The actual principal amount due from Borrower to the Bank at any one
time on account of the Note for which interest will accrue will be the sum of
all advances made on account hereof, less all principal payments actually
received by Bank in collected funds. The principal sum and the interest hereon
will be paid in installments at the principal office of the Bank in Tulsa,
Oklahoma, or at such other place as it may designate in writing, not later than
2:00 p.m., on the due dates thereof, according to the following schedule:
(i) On April 15, 2005, and on the same day of each month
thereafter until Final Payment, Borrower shall pay to
Bank the Monthly Payment Amount of principal and
interest described and defined below; and
(ii) On or about the March 15, 2008 (the "Final Payment"),
Borrower shall pay the Final Payment of all accrued and
unpaid interest and the remaining principal balance of
the Note as well as all other sums due under the terms
of the Loan Agreement.
MONTHLY PAYMENT AMOUNT. The Monthly Payment amount due as described
above shall be an amount calculated based upon a full fifteen year amortization
(the "Amortization Period") of the outstanding principal balance of the Note at
the then Floating Interest Rate, and such monthly payment amount shall be
recalculated on a quarterly basis, with any outstanding principal and all
accrued and unpaid interest to be due and payable in full on the Final Payment
Date. Such recalculation of the monthly payment amount shall be based upon the
then existing outstanding principal balance of this Note at the time of such
recalculation based upon the remaining portion of the fifteen year Amortization
Period from the date of the Note at the then
Floating Interest Rate. Notwithstanding the fixed monthly payments due and
payable (adjusted quarterly during each year of the term of the Note) principal
sums due and outstanding shall continue to bear interest at all times at the
Floating Interest Rate and shall change on each day in which the Floating
Interest Rate changes. In the event the actual amount applied to principal in
any quarter is less than the amount that would have been applied to principal
under the full fifteen year amortization (less the months that have elapsed
since the date of the Note), then Bank shall include such amount in the
re-calculation on the monthly payment at the end of the quarter. Sums paid in
excess of the amount sufficient to cause the loan to be amortized on a full
Amortization Period basis shall be applied to reduce principal sums outstanding.
If any payment of interest or principal due hereunder or any
interest or principal on any other indebtedness of the Borrower or any party
primarily or secondarily liable hereunder is not paid when due, or if any
default occurs under any of the loan documents between any party primarily or
secondarily liable on this Note, or if any party primarily or secondarily liable
hereunder shall make an assignment for the benefit of the creditors, or if an
attachment or garnishment proceeding in excess of $300,000.00 not covered by
insurance against the Borrower shall be commenced, or if any judgment in excess
of $300,000.00 not covered by insurance be rendered against the Borrower, or if
a receiver be appointed over any of the property of Borrower or if any
proceeding in bankruptcy be instituted by or against any party primarily or
secondarily liable under this Note, the Bank may, at its option, without notice
or demand, declare this Note in default and all indebtedness hereunder
immediately due and payable. All sums applied to the Note in excess of then due
installment of interest or principal whether by pre-payment, acceleration or
otherwise, will be applied first to reduce the costs incurred under the security
documents, then to accrued but unpaid interest, then to installments of
principal then due but unpaid and finally, to the installments of principal last
maturing in inverse order. In the event of a default, the entire unpaid balance
shall be immediately due and payable, together with interest from the date of
default on such principal balance at the rate of six percent (6%) per annum
above the Prime Lending Rate of Interest as defined in the Loan Agreement.
All agreements between the Borrower and the Bank are expressly
limited so that in no event whatsoever, whether by reason of disbursement of the
proceeds hereof or otherwise, shall the amount of interest or finance charge (as
defined by the laws of the State of Oklahoma) paid or agreed to be paid by the
undersigned to the Bank hereof exceed the highest lawful contractual rate of
interest or the maximum finance charge permissible under the law which a court
of competent jurisdiction, by final non-appealable order, determines to be
applicable hereto. If fulfillment of any agreement between the undersigned and
the Bank hereof, at the time of the performance of such agreement becomes due,
involves interest exceeding such highest lawful contractual rate or such maximum
permissible finance charge, then the obligation to fulfill the same shall be
reduced so such obligation does not exceed such highest lawful contractual rate
or maximum permissible finance charge. If by any circumstance the Bank shall
ever receive as interest or finance charge an amount which would exceed the
amount allowed by applicable law, the amount which may be deemed excessive shall
be deemed applied to the principal of the indebtedness evidenced hereby and not
to interest. (All interest and finance charges paid or agreed to be paid to the
Bank hereof shall be prorated, allocated and spread throughout the full period
of this Note.) The terms and provisions of this paragraph shall control all
other terms and provisions contained herein and in any other documents executed
in connection herewith. If any
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provision of this Note, or the application thereof to any party or circumstance
is held invalid or unenforceable, the remainder of this Note and the application
of such provision to other parties or circumstances shall not be affected
thereby, provisions of this Note being severable in any such instance.
At the maturity of this Note, whether by acceleration or otherwise,
the Bank, at its option, may apply to the payment of this Note or to any other
indebtedness of Borrower to the Bank, whether then due or not, the deposit
balances of Borrower; and the Bank shall be deemed to have exercised any such
right of set-off and to have made a charge against such money immediately upon
occurrence of such default, even though such charge is made or entered into the
books of the Bank subsequently thereto. From time to time, the maturity of this
Note may be extended or this Note may be renewed, in whole or in part, or a new
note of a different form may be substituted for this Note and/or the rate of
interest may be changed, or changes may be made in consideration of loan
extensions and the Bank, from time to time, may waive or surrender either in
whole or in part any rights, security interest(s), liens, guaranties given for
the benefit of the Bank's note in connection with the payment and securing the
payment of this Note; but no such consequence shall in any manner affect, limit,
modify or otherwise impair any rights, guaranties, assumption agreements or
security not specifically waived, released or surrendered in writing, nor shall
any maker, guarantor, person assuming the debt or any part thereof, endorser or
any person who is or might be liable hereon either primarily or contingently, be
released from such liability by reason of the occurrence of such event. The
Bank, from time to time, shall have the unlimited right to release any person
who might be liable hereon, and any such release shall not affect or discharge
the liability of any other person who is or might be liable hereon, either
primarily or secondarily.
The Borrower on its own behalf and all persons assuming liability
under this Note hereby severally waive protest, presentment, demand, dishonor,
notice of dishonor, notice of protest or non-payment in the case this Note or
any payment due hereunder is not paid when due, and agree to any renewal of this
Note or to any extension, acceleration or postponement of the time of payment,
or any other indulgence to, any substitution, exchange or release of collateral
and to the release of any party or person primarily or contingently liable
without notice to any maker, endorser, guarantor, surety or other person
assuming liability. The Borrower and any guarantor, endorser, and surety or any
other person who is or may be primarily liable hereon, will, on demand, pay all
costs of collection, including a reasonable attorneys' fee to the Bank
attempting to enforce the payment of this Note and a reasonable attorneys' fee
for defending the validity of the Note or any documents securing this Note. The
words "any party" or "all parties" shall, in addition to the undersigned,
include endorsers, sureties and guarantors of the Note and the word
"undersigned" shall include the singular as well as the plural member.
Any notice or demand given pursuant to the terms of this Note shall
be given in the manner specified in the Loan Agreement; provided, however, that
all notices and demands for payment from the holder of this Note actually
received in writing by the Borrower shall be considered to be effective upon the
receipt thereof by the Borrower regardless of the procedure or method utilized
to accomplish delivery thereof to the Borrower.
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Borrower warrants and stipulates that the Loan is a loan for
commercial loan purposes within the meaning of the laws of Oklahoma, and
Borrower further warrants that the entire loan proceeds will be used for such
commercial purposes. Borrower affirms, acknowledges and agrees that, as of the
date hereof, Borrower has no defenses, rights of setoff, or claims against Bank
in connection with the Loan. This Note shall be construed, governed and enforced
in accordance with the laws of the State of Oklahoma, without regard to
principles of conflicts of law. This Note may be assigned by the Bank or any
holder at any time, and Bank may sell one or more participations in this Note
without the consent of Borrower.
It is specifically agreed that time is of the essence with respect
to the strict performance by Borrower of its obligations under this Note.
Notwithstanding the foregoing, Bank's failure to demand strict performance by
Borrower under any of the terms hereof shall not constitute a waiver or
abandonment of Bank's right to demand strict performance thereafter. There shall
be no waiver by Bank of any of its rights or remedies under this Note or other
Loan Documents unless such waiver is in writing and signed by Bank. Any such
written waiver shall apply only to the particular instance specified therein and
shall not impair the further exercise of such right or remedy or of any other
right or remedy.
TO THE EXTENT ALLOWED BY LAW, BORROWER AND BANK WAIVE ALL RIGHTS TO
A TRIAL BY JURY IN ANY ACTION, COUNTERCLAIM, OR PROCEEDING BASED UPON, OR
RELATED TO, THE SUBJECT MATTER OF THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS.
THIS WAIVER APPLIES TO ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS AND
PROCEEDINGS, INCLUDING PARTIES WHO ARE NOT PARTIES TO THIS NOTE. THIS WAIVER IS
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE AND BORROWER ACKNOWLEDGES THAT
NEITHER BANK, NOR ANY PERSON ACTING ON BEHALF OF BANK, HAS MADE ANY
REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. BORROWER FURTHER ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED, IN THE SIGNING OF
THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED
OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER
WITH COUNSEL. BORROWER FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE
MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION.
This Promissory Note is the Note subject to and entitled to the
benefits of a Loan Agreement. The Note shall be governed and construed in
accordance with the laws of the State of Oklahoma.
(SIGNATURE PAGE FOLLOWS)
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BORROWER:
GREYSTONE MANUFACTURING, L.L.C.,
AN OKLAHOMA LIMITED LIABILITY COMPANY
By: /s/ Warren Kruger
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Warren Kruger, Manager
STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
On this 4th day of March, 2005, before me, the undersigned Notary
Public in and for said County and State, personally appeared Warren Kruger, as
Manager/Member of GREYSTONE MANUFACTURING, L.L.C., who executed the foregoing
instrument on behalf of said corporation for the purposes therein expressed.
In witness whereof, I have hereunto set my hand and official seal
the day and year last above written.
/s/ Kay Maness
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Notary Public Signature
[ S E A L ]
My commission expires: My Commission Number:
June 2, 2006 02007996
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