Exhibit 10.28
PROMISSORY NOTE
euro 98,094,875.00 November 26, 2004 Dallas, Texas
FOR VALUE RECEIVED, the undersigned, Kronos Worldwide, Inc., a Delaware
corporation, unconditionally promises to pay to the order of Kronos
International, Inc., a corporation duly organized under the laws of the state of
Delaware in the United States of America, with its seat of management and
principal place of business in Germany, at its address Peschstrasse 5, 51373
Leverkusen, Germany and offices in Dallas, Texas at 5430 LBJ Freeway, Suite
1700, Dallas, Texas 75240-2697, in lawful money of the European Union, the
principal sum of NINETY EIGHT MILLION NINETY FOUR THOUSAND EIGHT HUNDRED SEVENTY
FIVE and NO/100ths EUROS (euro 98,094,875.00) together with interest from the
date of this Note on the unpaid principal balance from time to time pursuant to
the terms of this Note. This Note shall be unsecured and will bear interest on
the terms set forth in Section 4 below. Capitalized terms not otherwise defined
shall have the meanings given to such terms in Section 14 of this Note.
Section 1. Place of Payment. All payments will be made at Payee's address
at Peschstrasse 5, 51373 Leverkusen, Germany, or such other place as the Payee
may from time to time designate in writing, in immediately available funds,
without setoff or counterclaim.
Section 2. Payment. The principal balance of this Note and any unpaid and
accrued interest thereon shall be due and payable on the Maturity Date or upon
acceleration as provided herein. Prior to the Maturity Date or acceleration,
unpaid and accrued interest on the outstanding principal balance of this Note
shall be due and payable quarterly on March 31, June 30, September 30 and
December 31 of each year; provided, however, that such day is a business day,
and if such day is not a business day, the quarterly interest payment shall be
due the next successive business day.
Section 3. Prepayment. This Note may be prepaid in part or in full at any
time without penalty; provided, however, prepayments shall be first applied to
accrued and unpaid interest and then to principal.
Section 4. Interest. The unpaid balance of this Note (exclusive of any past
due principal) shall bear interest at an annual rate of nine and one quarter
percent (9.25%). Ten business days after the Maturity Date or acceleration as
provided in this Note, all past due principal and past due interest owed under
this Note will bear interest at an annual rate of twelve percent (12%). Accrued
interest on the unpaid principal of this Note shall be computed on the basis of
a 365 or 366-day year, as the case may be, for actual days elapsed. In no event,
however, shall such computation result in an amount of accrued interest that
would exceed accrued interest on the unpaid principal balance during the same
period at the Maximum Rate. Notwithstanding anything to the contrary, this Note
is expressly limited so that in no contingency or event whatsoever shall the
amount paid or agreed to be paid to the Payee exceed the Maximum Rate. If, from
any circumstances whatsoever, the Payee shall ever receive as interest an amount
that would exceed the Maximum Rate, such amount received that would be in excess
of the Maximum Rate shall be applied to the reduction of the unpaid principal
balance and not to the payment of interest, and if the principal amount of this
Note is paid in full, any remaining excess shall be paid to Maker, and in such
event, the Payee shall not be subject to any penalties provided by any laws for
contracting for, charging, taking, reserving or receiving interest in excess of
the highest lawful rate permissible under applicable law.
Section 5. Remedy. Upon the occurrence and during the continuation of an
Event of Default, Payee may, at its option, declare the entire unpaid principal
of this Note, and all accrued interest and other amounts payable hereunder,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are expressly waived by Maker, and upon such
declaration, such amounts shall become and shall be immediately due and payable.
The Payee shall have all of the rights and remedies provided in the applicable
Uniform Commercial Code or in this Note or any other agreement between Maker and
in favor of the Payee, as well as those rights and remedies provided by any
other applicable law, rule or regulation. All rights and remedies of the Payee
are cumulative and may be exercised singly or concurrently. The exercise of any
right or remedy will not be a waiver of any other right or remedy. Failure to
exercise any right or remedy upon the occurrence of an Event of Default shall
not constitute a waiver of the right to exercise such right or remedy upon the
occurrence of a subsequent Event of Default.
Section 6. Right of Offset. The Payee shall have the right of offset
against amounts that may be due by the Payee now or in the future to Maker
against amounts due under this Note.
Section 7. Record of Outstanding Principal. The date and amount of each
repayment of principal outstanding under this Note shall be recorded by Payee in
its records. The aggregate unpaid principal balance so recorded by Payee shall
be the best evidence of the principal balance owing and unpaid under this Note;
provided that the failure of Payee to so record any such balance or any error in
so recording any such balance shall not limit or otherwise affect the
obligations of Maker under this Note to repay the principal balance outstanding
and all accrued or accruing interest.
Section 8. Waiver. Maker and each surety, endorser, guarantor, and other
party now or subsequently liable for payment of this Note, severally waive
demand, presentment for payment, notice of dishonor, protest, notice of protest,
diligence in collecting or bringing suit against any party liable on this Note,
and further agree to any and all extensions, renewals, modifications, partial
payments, substitutions of evidence of indebtedness, and the taking or release
of any collateral with or without notice before or after demand by the Payee for
payment under this Note.
Section 9. Costs and Attorneys' Fees. In the event the Payee incurs costs
in collecting on this Note, this Note is placed in the hands of any attorney for
collection, suit is filed on this Note or if proceedings are had in bankruptcy,
receivership, reorganization, or other legal or judicial proceedings for the
collection, Maker and any guarantor jointly and severally agree to pay on demand
to the Payee all expenses and costs of collection, including, but not limited
to, attorneys' fees incurred in connection with any such collection, suit, or
proceeding, in addition to the principal and interest then due.
Section 10. Time of Essence. Time is of the essence with respect to all of
Maker's obligations and agreements under this Note.
Section 11. Applicable Law, Jurisdiction and Venue. This Note shall be
governed by and construed in accordance with the domestic laws of the state of
Delaware, without giving effect to any choice of law or conflict of law
provision or rule (whether of the state of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
state of Delaware. Maker consents to jurisdiction and venue in the courts
located in Dallas, Texas.
Section 12. Notice. Any notice or demand required by this Note shall be
deemed to have been given and received on the earlier of (i) when the notice or
demand is actually received by the recipient or (ii) 72 hours after the notice
is deposited in the mail, certified or registered, with postage prepaid, and
addressed to the recipient. The address for giving notice or demand under this
Note (i) to the Payee shall be the place of payment specified in Section 1 or
such other place as the Payee may specify in writing to the Maker and (ii) to
the Maker shall be the address below the Maker's signature or such other place
as the Maker may specify in writing to the Payee.
Section 13. Successors and Assigns. All of the covenants, obligations,
promises and agreements contained in this Note made by Maker shall be binding
upon its successors and assigns; notwithstanding the foregoing, Maker shall not
assign this Note or its performance under this Note without the prior written
consent of the Payee.
Section 14. Definitions. For purposes of this Note, the following terms
shall have the following meanings:
(a) "Event of Default" shall mean the failure by Maker to make when due a
punctual payment of principal of, or interest on, this Note within thirty
(30) days following the date such amount becomes due and payable in
accordance with the terms of this Note.
(b) "Maker" shall mean Kronos Worldwide, Inc., a corporation incorporated under
the laws of the state of Delaware in the United States of America.
(c) "Maturity Date" shall mean December 31, 2010.
(d) "Maximum Rate" shall mean the highest lawful rate permissible under
applicable law for the use, forbearance or detention of money.
(e) "Note" shall mean this Promissory Note.
(f) "Payee" shall mean Kronos International, Inc., or subsequent holder of this
Note.
EXECUTED effective November 26, 2004.
MAKER:
Kronos Worldwide, Inc.
By: /s/ John St. Wrba
-----------------------------
John St. Wrba
Vice President & Treasurer
Address: Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697