Attached files
| file | filename |
|---|---|
| 8-K - HII Technologies, Inc. | v190136_8k.htm |
| EX-10.5 - HII Technologies, Inc. | v190136_ex10-5.htm |
| EX-10.3 - HII Technologies, Inc. | v190136_ex10-3.htm |
| EX-10.2 - HII Technologies, Inc. | v190136_ex10-2.htm |
| EX-10.4 - HII Technologies, Inc. | v190136_ex10-4.htm |
| EX-10.1 - HII Technologies, Inc. | v190136_ex10-1.htm |
| EX-10.6 - HII Technologies, Inc. | v190136_ex10-6.htm |
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE OFFERED OR SOLD IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, REGISTRATION UNDER SAID
ACT.
AMENDED AND RESTATED
PROMISSORY NOTE
$706,125
Houston,
Texas
Effective
June 30, 2010
FOR VALUE RECEIVED, the undersigned,
HEMIWEDGE INDUSTRIES INC. (formerly called SHUMATE INDUSTRIES, INC.), a Delaware
corporation (“Industries”),
and HEMIWEDGE VALVE CORPORATION, a Texas corporation (“Hemiwedge”)
(Industries and Hemiwedge are sometimes collectively referred to herein as the
“Borrowers”),
jointly and severally PROMISE TO PAY to the order of EADS INVESTMENTS I, LLC, a
Texas limited liability company with offices at 18305 Kitzman Road, Cypress,
Texas 77429 and D. BRADLEY MCWILLIAMS of 710 North Post Oak Road, Suite 400,
Houston, Texas 77024, in equal shares (50/50), and their respective heirs,
successors and assigns (collectively, the “Lenders”)
at their above stated addresses, or at such other place as may be designated in
writing by the Lenders, the principal sum of [SEVEN HUNDRED AND SIX THOUSAND ONE
HUNDRED TWENTY-FIVE DOLLARS ($706,125)], together with interest thereon
at the rate and in the manner hereinafter stated.
The
entire unpaid principal balance of this Note plus all accrued, but unpaid,
interest owing on this Note shall be due and payable on June 30, 2011, subject
to acceleration as provided herein and under the provisions of the Loan
Agreement (hereinafter defined) (“Maturity”). All
accrued but unpaid interest shall be due and payable at
Maturity.
Interest
on this Promissory Note (“Note”)
shall be paid at the rate equal to the lesser of (a) ten percent
(10%) per annum, or (b) the highest lawful rate of interest permitted by
applicable law (the “Maximum
Rate"). All interest will be computed for the actual number of
days elapsed at a per diem charge based on
a year consisting of three hundred-sixty (360) days. The Borrowers
will, subject to the provisions set forth herein, pay interest to the Lenders
quarterly commencing on September 30, 2010 and thereafter on December 31, 2010
and March 31, 2011 and the balance of interest owed being payable in full at
Maturity (each date on which any interest is owed hereinafter called an “Interest Due
Date”).
In lieu of paying interest owed to
Lenders in cash on any Interest Due Date, pursuant to the provisions of the Loan
Agreement, Borrowers may elect, in their discretion, to issue common shares of
Industries to Lenders in full payment of all interest owed on such Interest Due
Date, in accordance with the following procedure:
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For all
interest owed, on a per diem basis, based on
the number of days elapsed from (i) in the case of the first Interest Due Date,
the effective date of this Note, and (ii) in the case of each Interest Due Date
thereafter, the previous Interest Due Date, Industries shall issue to each
Lender 2,500 shares of its outstanding and unissued common stock (par value of
$0.001 per share) (for a total of 5,000 common shares to both Lenders) for each
day’s worth of interest owed on such Interest Due Date (the “Interest Common
Stock”), which Interest Common Stock shall be deemed fully paid and
non-assessable upon delivery to the Lenders. All such Interest Common Stock
issued to the Lender shall be subject to the restrictions and other provisions
set forth in the Loan Agreement.
If there
is any conflict between this Note and the Loan Agreement with respect to the
payment or computation of interest or any other provisions of this Note, the
Loan Agreement shall prevail.
This Note is executed and delivered in
connection with an Amended and Restated Loan Agreement among the Borrowers and
the Lenders, dated with effect on even date of this Note (the “Loan
Agreement”), and Lenders are entitled to all of the rights and benefits
set forth in such Loan Agreement. Pursuant to the Loan Agreement,
this Note amends and restates the existing indebtedness of the Borrowers to the
Bank (defined below).
This Note (i) evidences the remaining
outstanding principal on the date of this Note of all loans and advances made to
SHUMATE INDUSTRIES, INC., (now called HEMIWEDGE INDUSTRIES, INC.), SHUMATE
MACHINE WORKS, INC., and HEMIWEDGE VALVE CORPORATION by Stillwater National Bank
and Trust Company (“Bank”)
pursuant to Loan and Consolidation Agreement executed by the Borrowers, certain
guarantors and the Bank, also dated September 30, 2008 (“Bank Loan
Agreement”), and that certain Amended and Restated Promissory Note (Term
Note) for the face amount of $751,000 (“Previous
Note”), which Previous Note and Bank Loan Agreement, and all liens and
security interests securing such Previous Note and Bank Loan Agreement, were
assigned and transferred by the Bank to the Lenders pursuant to an Assignment of
Note, Loan Documents and Security Interests dated of even date herewith executed
by and among the Bank and the Lenders and (ii) includes certain additional costs
and expenses incurred by Lenders.
If any payment of the principal or
interest (or delivery of Interest Common Stock in lieu of cash interest) on this
Note shall become due on a Saturday, Sunday, or public holiday in Houston, Texas
(whether national or local), such payment shall be made on the next succeeding
Houston, Texas business day unless the effect of such extension would be to
carry the payment over to the next calendar month, in which event such payment
shall be due on the preceding business day of the month in which such payment is
due, and any such extension or reduction of time shall in such case be included
in computing interest in connection with such payment.
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All payments made by Borrower on this
Note shall first be applied to the payment of accrued interest and the balance
will be applied as provided in the Loan Agreement, provided that no payment will
be applied to this Note until same is received by the Lenders in collected funds
or the Interest Common Stock due on any Interest Due Date has been delivered to
the Lenders, as appropriate.
Any
principal or interest not paid when due, by acceleration or otherwise, will bear
interest at the Maximum Rate applicable at such time and such overdue interest
shall be payable in cash only (with no option for Borrowers to pay in Interest
Common Stock) and shall be paid at the time of and as a condition precedent to
curing any default hereunder. During the existence of any such
default, the Lenders may apply any payments received on any amount due hereunder
or under the terms of any instrument now or hereafter evidencing or securing
this indebtedness as the Lenders determine from time to time.
The Borrowers will have the right to
prepay this Note in whole or in part at any time and from time to time without
premium or penalty.
The Borrowers jointly and severally
agree that if, and as often as, this Note is placed in the hands of an attorney
for collection or to defend or enforce any of the Lenders’ rights hereunder or
under any instrument securing payment of this Note, the Borrowers will pay the
Lenders’ reasonable attorneys’ fees, all court costs and all other expenses
incurred by the Lenders in connection therewith.
This Note is issued by the Borrowers
and accepted by the Lenders pursuant to a lending transaction negotiated,
consummated and to be performed in Texas. This Note is to be
governed, construed and interpreted according to the internal laws of the State
of Texas. All actions with respect to this Note or any instrument
securing payment of this Note may be instituted in the courts of the State of
Texas sitting in Harris County or Montgomery County, Texas, and by execution and
delivery of this Note, the Borrowers irrevocably and unconditionally submit to
the non-exclusive jurisdiction (both subject matter and personal) of each such
court and irrevocably and unconditionally waive: (a) any objection the Borrowers
may now or hereafter have to the venue in any such court; and (b) any claim that
any action or proceeding brought in any such court has been brought in an
inconvenient forum.
Payment of this Note is secured by that
certain Amended and Restated Security Agreement of even date herewith (the
“Security
Agreement”). On the breach of any provision of this Note, the
Loan Agreement, the Security Agreement or any other instrument securing payment
of this Note, at the option of the Lenders, the entire indebtedness evidenced by
this Note will become immediately due, payable and collectible then or
thereafter as the Lenders may elect, regardless of any demand or the date of
Maturity hereof. Failure by the Lenders to exercise such option will
not constitute a waiver of the right to exercise the same in the event of any
subsequent default.
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The Borrowers, endorsers, sureties,
guarantors and all other persons who may become liable for all or any part of
the indebtedness under this Note severally waive presentment for payment,
protest and notice of nonpayment. Said persons consent to any
extension of time (whether one or more) of payment hereof, release of all or any
part of the security for the payment hereof or release any party liable for the
payment of this obligation. Any such extension or release may be made
without notice to any such person without discharging such person’s liability
hereunder.
Except to the extent otherwise
specifically provided in this Note, all payments of principal and interest due
hereunder shall be made in lawful money of this United States of America,
without any deduction, offset or withholdings of any kind, in immediately
available funds.
No delay or omission on the part of the
Lenders in exercising any right hereunder shall operate as a waiver of such
right or of any other right under this Note. A waiver on any one
occasion shall not be construed as a bar to or waiver of any right or remedy on
any future occasion.
Anything in this Note to the contrary
notwithstanding, Borrowers shall never be required to pay unearned interest on
this Note and shall never be required to pay interest on this Note at a rate in
excess of the Maximum Rate, and if the effective rate of interest which would
otherwise be payable hereunder would exceed the Maximum Rate, or if Lenders, or
any holder of this Note shall receive any unearned interest or shall receive
monies that are deemed to constitute interest which would increase the effective
rate of interest payable under this Note to a rate in excess of the Maximum
Rate, then Lenders agree that (i) the amount of interest which would otherwise
be payable under this Note shall be automatically reduced to the Maximum Rate,
and (ii) any unearned interest paid by the Borrowers or any interest paid by the
Borrowers in excess of the Maximum Rate shall, at the option of the Lenders or
other holder of this Note be either refunded to the Borrowers or credited on the
principal of this Note.
THIS NOTE REPRESENTS THE JOINT AND
SEVERAL OBLIGATIONS OF THE BORROWERS AND, TOGETHER WITH THE LOAN AGREEMENT, THE
SECURITY AGREEMENT AND OTHER DOCUMENTS RELATED HERETO WITH RESPECT TO THE
INDEBTEDNESS EVIDENCED BY THIS NOTE AND THE LOAN AGREEMENT AND THERETO, SETS
FORTH THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES HERETO.
This Note and all amounts due hereunder
are payable in equal shares (on a 50/50 basis) to the Lenders.
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This Note and all rights and benefits
of the Lenders hereunder may be assigned by the Lenders in whole or in
part.
This Note
amends, extends, renews, restates and modifies, but does not release or
extinguish, the Previous Note, and all indebtedness evidenced thereby is
specifically carried forward and remains in full force and
effect. The Borrowers hereby jointly and severally ratify, confirm
and adopt such indebtedness represented by the Previous Note which Previous Note
is hereby renewed, extended, and modified and carried forward under the terms of
this Note with the intention that all indebtedness and obligations under the
Previous Note and all liens and security interests supporting such indebtedness
relate back and continue to run, without lapse, from the effective dates of the
Previous Note and all prior promissory notes amended and restated by such
Previous Note.
IN WITNESS WHEREOF, the Borrowers have
executed this instrument effective the date first above
written.
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HEMIWEDGE
INDUSTRIES, INC., a Delaware
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corporation
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By:
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Name: Matthew
C. Flemming
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Title: CFO
and Secretary
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HEMIWEDGE
VALVE CORPORATION, a Texas
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corporation
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By:
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Name: Matthew
C. Flemming
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Title: CFO
and Secretary
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