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LOAN NUMBER LOAN NAME ACCT. NUMBER NOTE DATE INITIALS
12500024 First American 04/22/03 GEY
Capital Corporation
NOTE AMOUNT RATE MATURITY DATE LOAN PURPOSE
INDEX (w/Margin)
$1,875,578.18 6.000% 4/22/13 Commercial
Wall Street Journal
Prime Creditor Use Only
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PROMISSORY NOTE
(Commercial - Single Advance - Variable Rate)
DATE AND PARTIES. The date of this Promissory Note (Note) is April 22, 2003. The
parties and their addresses are:
LENDER:
WESTERN NATIONAL BANK
000 XX 0xx Xx., Xxx. 000
Xxxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
BORROWER:
FIRST AMERICAN CAPITAL CORPORATION
a Kansas Corporation
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxx 00000
1. DEFINITIONS. As used in this Note, the terms have the following meanings:
A. Pronouns. The pronouns "I," "me," and "my" refer to each Borrower
signing this Note, individually and together with their heirs, successors
and assigns, and each other person or legal entity (including guarantors,
endorsers, and sureties) who agrees to pay this Note. "You" and "Your"
refer to the Lender, with its participants or syndicators, successors and
assigns, or any person or company that acquires an interest in the Loan.
B. Note. Note refers to this document, and any extensions, renewals,
modifications and substitutions of this Note.
C. Loan. Loan refers to this transaction generally, including obligations
and duties arising from the terms of all documents prepared or submitted
for this transaction such as applications, security agreements, disclosures
or notes, and this Note.
D. Property. Property is any property, real, personal or intangible, that
secures my performance of the obligations of this Loan.
E. Percent. Rates and rate change limitations are expressed as annualized
percentages.
2. PROMISE TO PAY. For value received, I promise to pay you or your order, at
your address, or at such other location as you may designate, the principal sum
of $1,875,578.18 (Principal) plus interest from April 22, 2003 on the unpaid
Principal balance until this Note matures or this obligation is accelerated.
3. INTEREST. Interest will accrue on the unpaid Principal balance of this Note
at the rate of 6.000 percent (Interest Rate) until April 22, 2008, after which
time it may change as described in the Variable Rate subsection.
A. Interest After Default. If you declare a default under the terms of this
Loan, including for failure to pay in full at maturity, you may increase
the Interest Rate otherwise payable as described in this section. In such
event, interest will accrue on the unpaid Principal balance of this Note at
the Interest Rate in effect from time to time under the terms of this Note,
until paid in full.
B. Maximum Interest Amount. Any amount assessed or collected as interest
under the terms of this Note or obligation will be limited to the Maximum
Lawful Amount of interest allowed by state or federal law. Amounts
collected in excess of the Maximum Lawful Amount will be applied first to
the unpaid Principal balance. Any remainder will be refunded to me.
C. Statutory Authority. The amount assessed or collected on this Note is
authorized by the Kansas usury laws under Xxx. Stat. Xxx. ss. 16-207.
D. Accrual. During the scheduled term of this Loan interest accrues using
an Actual/360 days counting method.
E. Variable Rate. The Interest Rate may change during the term of this
transaction.
(1) Index. Beginning with the first Change Date, the Interest Rate
will be based on the following index: the highest base rate on
corporate loans posted by at least 75% of the nation's 30 largest
banks that The Wall Street Journal publishes as the Prime Rate.
The Current Index is the most recent index figure available on each
Change Date. You do not guaranty by selecting this Index, or the
margin, that the Interest Rate on this Note will be the same rate you
charge on any other loans or class of loans you make to me or other
borrowers. If this Index is no longer available, you will substitute a
similar index. You will give me notice of your choice.
(2) Change Date. Each date on which the Interest Rate may change is
called a Change Date. The Interest Rate may change April 22, 2008 and
every 5 years thereafter.
(3) Calculation Of Change. On each Change Date, you will calculate the
Interest Rate, which will be the Current Index. The result of this
calculation will be rounded to the nearest .001 percent. Subject to
any limitations, this will be the Interest Rate until the next Change
Date. The new Interest Rate will become effective on each Change Date.
The Interest Rate and other charges on this Note will never exceed the
highest rate or charge allowed by law for this Note.
(4) Limitations. The Interest Rate changes are subject to the
following limitations:
(a) Lifetime. The Interest Rate will never be greater than 9.500
percent or less than 6.000 percent.
(5) Effect Of Variable Rate. A change in the Interest Rate will have
the following effect on the payments: The amount of scheduled payments
will change.
4. ADDITIONAL CHARGES. As additional consideration. I agree to pay, or have
paid, these additional fees and charges.
A. Nonrefundable Fees and Charges. The following fees are earned when
collected and will not be refunded if I prepay this Note before the
scheduled maturity date.
Origination Fee. A(n) Origination Fee fee of $9,500.00 payable from
the loan proceeds.
Flood Determination. A(n) Flood Determination fee of $10.00 payable
from the loan proceeds.
File Assignment & Title Commitment. A(n) File Assignment & Title
Commitment fee of $108.00 payable from the loan proceeds.
Columbian Fee. A(n) Columbian Fee fee of $865.00 payable from the loan
proceeds.
Appraisal. A(n) Appraisal fee of $500.00 payable from the loan
proceeds.
I understand and agree that some payments to third parties as part of this
transaction may also involve money retained by you or paid back to you as
commissions or other remuneration.
5. PAYMENT. I agree to pay this Note in 120 payments. A payment of $13,533.71
will be due May 22, 2003, and on the 22nd day of each month thereafter. This
scheduled payment amount may change to reflect changes in the
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Interest Rate as described in the Variable Rate subsection of this Note. A final
payment of the entire unpaid balance of Principal and interest will be due April
22, 2013.
Payments will be rounded to the nearest $.01. With the final payment I also
agree to pay any additional fees or charges owing and the amount of any advances
you have made to others on my behalf. Payments scheduled to be paid on the 29th,
30th or 31st day of a month that contains no such day will, instead, be made on
the last day of such month.
If the amount of a scheduled payment does not equal or exceed interest accrued
during the payment period the unpaid portion will be added to, and will be
payable with, the next scheduled payment.
Each payment I make on this Note will be applied first to interest that is due
then to principal that is due, and finally to any charges that I owe other than
principal and interest. If you and I agree to a different application of
payments, we will describe our agreement on this Note. The actual amount of my
final payment will depend on my payment record.
6. PREPAYMENT. I may prepay this Loan in full or in part at any time. Any
partial prepayment will not excuse any later scheduled payments until I pay in
full.
7. LOAN PURPOSE. The purpose of this Loan is PURCHASE OR REFINANCE REAL ESTATE.
8. SECURITY. This Loan is secured by separate security instruments prepared
together with this Note as follows:
Document Name Parties to Document
Leases And Rents Assignment - 1303 First American Place First American Capital Corporation
and by the following, previously executed, security instruments or agreements:
ASSIGNMENT OF NOTE AND MORTGAGE, DATED APRIL 22, 2003 BETWEEN COLUMBIAN BANK &
TRUST AND WESTERN NATIONAL BANK.
9. DEFAULT. I will be in default if any of the following occur:
A. Payments. I fail to make a payment in full when due.
B. Insolvency. I make an assignment for the benefit of creditors or become
insolvent, either because my liabilities exceed my assets or I am unable to
pay my debts as they become due.
C. Business Termination. I merge, dissolve, reorganize, end my business or
existence, or a partner or majority owner dies or is declared legally
incompetent,
D. Failure to Perform. I fail to perform any condition or to keep any
promise or covenant of this Note.
E. Other Documents. A default occurs under the terms of any other
transaction document.
F. Other Agreements. I am in default on any other debt or agreement I have
with you.
G. Misrepresentation. I make any verbal or written statement or provide any
financial information that is untrue, inaccurate, or conceals a material
fact at the time it is made or provided.
H. Judgment. I fail to satisfy or appeal any judgment against me.
I. Forfeiture. The Property is used in a manner or for a purpose that
threatens confiscation by a legal authority.
J. Name Change. I change my name or assume an additional name without
notifying you before making such a change.
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K. Property Transfer. I transfer all or a substantial part of my money or
property.
L. Property Value. The value of the Property declines or is impaired.
M. Material Change. Without first notifying you, there is a material change
in my business, including ownership, management, and financial conditions.
N. Insecurity. You reasonably believe that you are insecure.
10. ASSUMPTIONS. Someone buying the Property cannot assume the obligation. You
may declare the entire balance of the Note to be immediately due and payable
upon the creation of, or contract for the creation of, any lien, encumbrance, or
transfer of the Property.
11. WAIVERS AND CONSENT. To the extent not prohibited by law, I waive protest,
presentment for payment, demand, notice of acceleration, notice of intent to
accelerate and notice of dishonor.
A. Additional Waivers By Xxxxxxxx. In addition, I, and any party to this
Note and Loan, to the extent permitted by law, consent to certain actions
you may take, and generally waive defenses that may be available based on
these actions or based on the status of a party to this Note.
(1) You may renew or extend payments on this Note, regardless of the
number of such renewals or extensions.
(2) You may release any Borrower, endorser, guarantor, surety,
accommodation maker or any other co-signer.
(3) You may release, substitute or impair any Property securing this
Note.
(4) You, or any institution participating in this Note, may invoke
your right of set-off.
(5) You may enter into any sales, repurchases or participations of
this Note to any person in any amounts and I waive notice of such
sales, repurchases or participations.
(6) I agree that any of us signing this Note as a Borrower is
authorized to modify the terms of this Note or any instrument
securing, guarantying or relating to this Note.
B. No Waiver By Lender. Your course of dealing, or your forbearance from,
or delay in, the exercise of any of your rights, remedies, privileges or
right to insist upon my strict performance of any provisions contained in
this Note, or other Loan documents, shall not be construed as a waiver by
you, unless any such waiver is in writing and is signed by you.
12. REMEDIES. After I default, and after you give any legally required notice
and opportunity to cure the default, you may at your option do any one or more
of the following.
A. Acceleration. You may make all or any part of the amount owing by the
terms of this Note immediately due.
B. Sources. You may use any and all remedies you have under state or
federal law or in any instrument securing this Note.
C. Insurance Benefits. You may make a claim for any and all insurance
benefits or refunds that may be available on my default.
D. Payments Made On My Behalf. Amounts advanced on my behalf will be
immediately due and may be added to the balance owing under the terms of
this Note, and accrue interest at the highest post-maturity interest rate.
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E. Set-Off. You may use the right of set-off. This means you may set-off
any amount due and payable under the terms of this Note against any right I
have to receive money from you. My right to receive money from you includes
any deposit or share account balance I have with you; any money owed to me
on an item presented to you or in your possession for collection or
exchange; and any repurchase agreement or other non-deposit obligation.
"Any amount due and payable under the terms of this Note" means the total
amount to which you are entitled to demand payment under the terms of this
Note at the time you set-off.
Subject to any other written contract, if my right to receive money from
you is also owned by someone who has not agreed to pay this Note, your
right of set-off will apply to my interest in the obligation and to any
other amounts I could withdraw on my sole request or endorsement.
Your right of set-off does not apply to an account or other obligation
where my rights arise only in a representative capacity. It also does not
apply to any Individual Retirement Account or other tax-deferred retirement
account.
You will not be liable for the dishonor of any check when the dishonor
occurs because you set-off against any of my accounts. I agree to hold you
harmless from any such claims arising as a result of your exercise of your
right of set-off.
F. Waiver. Except as otherwise required by law, by choosing any one or more
of these remedies you do not give up your right to use any other remedy.
You do not waive a default if you choose not to use a remedy. By electing
not to use any remedy, you do not waive your right to later consider the
event a default and to use any remedies if the default continues or occurs
again.
13. COLLECTION EXPENSES AND ATTORNEYS' FEES. On or after Default, to the extent
permitted by law, I agree to pay all expenses of collection, enforcement or
protection of your rights and remedies under this Note. Expenses include, but
are not limited to, attorneys' fees, court costs and other legal expenses. These
expenses are due and payable immediately. If not paid immediately, these
expenses will bear interest from the date of payment until paid in full at the
highest interest rate in effect as provided for in the terms of this Note. All
fees and expenses will be secured by the Property I have granted to you, if any.
To the extent permitted by the United States Bankruptcy Code, I agree to pay the
reasonable attorneys' fees you incur to collect this Debt as awarded by any
court exercising jurisdiction under the Bankruptcy Code.
14. WARRANTIES AND REPRESENTATIONS. I make to you the following warranties and
representations which will continue as long as this Note is in effect:
A. Power. I am duly organized, and validly existing and in good standing in
all jurisdictions in which I operate. I have the power and authority to
enter into this transaction and to carry on my business or activity as it
is now being conducted and, as applicable, am qualified to do so in each
jurisdiction in which I operate.
B. Authority. The execution, delivery and performance of this Note and the
obligation evidenced by this Note are within my powers, have been duly
authorized, have received all necessary governmental approval, will not
violate any provision of law, or order of court or governmental agency, and
will not violate any agreement to which I am a party or to which I am or
any of my Property is subject.
C. Name and Place of Business. Other than previously disclosed in writing
to you I have not changed my name or principal place of business within the
last 10 years and have not used any other trade or fictitious name. Without
your prior written consent, I do not and will not use any other name and
will preserve my existing name, trade names and franchises.
15 . APPLICABLE LAW. This Note is governed by the laws of Kansas, the United
States of America and to the extent required, by the laws of the jurisdiction
where the Property is located. In the event of a dispute, the exclusive forum,
venue and place of jurisdiction will be in Kansas, unless otherwise required by
law.
16. JOINT AND INDIVIDUAL LIABILITY AND SUCCESSORS. My obligation to pay this
Loan is independent of the obligation of any other person who has also agreed to
pay it. You may sue me alone, or anyone
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else who is obligated on this Loan, or any number of us together, to collect
this Loan. Extending this Loan or new obligations under this Loan, will not
affect my duty under this Loan and I will still be obligated to pay this Loan.
The duties and benefits of this Loan will bind and benefit the successors and
assigns of you and me.
17. AMENDMENT, INTEGRATION AND SEVERABILITY. This Note may not be amended or
modified by oral agreement. No amendment or modification of this Note is
effective unless made in writing and executed by you and me. This Note is the
complete and final expression of the agreement. If any provision of this Note is
unenforceable, then the unenforceable provision will be severed and the
remaining provisions will still be enforceable.
18. INTERPRETATION. Whenever used, the singular includes the plural and the
plural includes the singular. The section headings are for convenience only and
are not to be used to interpret or define the terms of this Note.
19. NOTICE, FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Unless otherwise
required by law, any notice will be given by delivering it or mailing it by
first class mail to the appropriate party's address listed in the DATE AND
PARTIES section, or to any other address designated in writing. Notice to one
party will be deemed to be notice to all parties. I will inform you in writing
of any change in my name, address or other application information. I will
provide you any financial statement or information you request. All financial
statements and information I give you will be correct and complete. I agree to
sign, deliver, and file any additional documents or certifications that you may
consider necessary to perfect, continue, and preserve my obligations under this
Loan and to confirm your lien status on any property. Time is of the essence.
20. CREDIT INFORMATION. I agree to supply you with whatever information you
reasonably request. You will make requests for this information without undue
frequency, and will give me reasonable time in which to supply the information.
21. ERRORS AND OMISSIONS. I agree, if requested by you, to fully cooperate in
the correction, if necessary, in the reasonable discretion of you of any and all
loan closing documents so that all documents accurately describe the loan
between you and me. I agree to assume all costs including by way of illustration
and not limitation, actual expenses, legal fees and marketing losses for failing
to reasonably comply with your requests within thirty (30) days.
22. WAIVER OF JURY TRIAL. All of the parties to this Note knowingly and
intentionally, irrevocably and unconditionally, waive any and all right to a
trial by jury in any litigation arising out of or concerning this Note or any
other related loan document or related obligation. All of these parties
acknowledge that this section has either been brought to the attention of each
party's legal counsel or that each party had the opportunity to do so.
23. SIGNATURES. By signing, I agree to the terms contained in this Note. I also
acknowledge receipt of a copy of this Note.
BORROWER:
First American Capital Corporation
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Chairman
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