TERM NOTE
---------
("Note")
UNIFIED FINANCIAL SERVICES, INC.
a Delaware corporation
000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
$2,293,750.00
DATE: December 28, 1999
Executed at Lexington, Kentucky
1. FOR VALUE RECEIVED, UNIFIED FINANCIAL SERVICES, INC. (the
"Borrower"), promises to pay to the order of BANK ONE, KENTUCKY, NA, a
national banking association (the "Bank"), the principal sum of Two
Million Two Hundred Ninety-Three Thousand Seven Hundred Fifty and 00/100
Dollars ($2,293,750.00) or so much thereof as may be advanced by Bank
and outstanding from time to time under this Note, and to pay interest
from the date hereof on such principal amount from time to time
outstanding at the per annum rate equal to the Prime Rate of interest as
declared by Bank from time to time and adjusted daily, all of such
payments to be made in lawful money of the United States of America in
immediately available funds, without defalcation. "Prime Rate" of
interest as used herein means a variable rate of interest announced from
time to time by Bank as its prime rate whether or not such rate is
otherwise published, which rate may not be Bank's lowest or best rate;
provided, that in the event this Note is assigned to another holder
which is a commercial bank, Prime Rate shall mean the reference rate of
interest established by such subsequent holder from and after the date
of such assignment, as its prime rate from time to time. The Prime Rate
shall be adjusted each time and at the time the Bank's prime rate
changes.
2. Borrower shall repay this Note by paying a fixed principal
payment of $100,000.00 per month plus accrued interest monthly beginning
on January 28, 2000 and continuing on the 28th day of each month
thereafter until June 30, 2000 (the "Maturity Date") at which time all
outstanding principal and accrued interest shall be due and payable in
full. Interest on this Note shall be computed by applying the ratio of
the annual interest rate over a year of 360 days, multiplied by the
outstanding principal balance, multiplied by the actual number of days
the principal balance is outstanding. Under no circumstances will the
interest rate on this Note be more than the maximum rate allowed by
applicable law. Borrower shall make each payment under this Note not
later than 12:00 p.m. (Noon), Lexington, Kentucky, Eastern time, on the
date when due, in lawful money of the United States of America, to Bank
at its Lexington Office, in immediately available funds. Borrower hereby
authorizes Bank to charge against any account of Borrower with Bank
containing unrestricted funds any amount so due. Whenever any payment to
be made under this Note shall be stated to be due on a Saturday, Sunday
or a public holiday or banking holiday, such payment shall be made on
the next succeeding Domestic Business Day, and such extension of time
shall be in such case be included in the computation of the payment of
interest.
3. This Note is mentioned in a Loan Agreement dated December
28, 1999. This Note, the Loan Agreement and all other documents defined
in the Loan Agreement as Loan Documents shall be collectively referred
to herein as the "Loan Documents".
4. The obligations evidenced by this Note or the Loan Agreement
are secured by the Stock Pledge and Security Agreement dated of even
date from Borrower.
5. If any payment required under the Note is not paid within
ten (10) days after such payment is due, then, at the option of Bank,
Borrower shall pay a late charge equal to five percent (5.0%) of the
amount of such payment or $25.00, whichever is greater, up to the
maximum amount of $750.00 per late charge to compensate Bank for
administrative expenses and other costs of delinquent payments. This
late charge may be assessed without notice, shall be immediately due and
payable and shall be in addition to all other rights and remedies
available to Bank. Upon the occurrence of any Event of Default and
during the continuation thereof, and after maturity, including maturity
upon acceleration, Bank, at its option, may, if permitted under
applicable law, do one or both of the following: (i) increase the
interest rate under this Note to the rate that is three percent (3.0%)
above the rate that would otherwise be payable thereunder, and (ii) add
any unpaid accrued interest to principal and such sum shall bear
interest therefrom until paid at the rate provided in this Note
(including any increased rate). The interest rate under this Note shall
not exceed the maximum rate permitted by applicable law under any
circumstances and if such increased rate of interest exceeds the maximum
amount permitted under applicable law in such circumstances, the amount
of the increased interest rate shall be increased by such lesser maximum
amount as legally may be allowed, and Bank's entitlement to such sum
shall be in addition to, and not in lieu of, all other rights and
remedies available to Bank as a result of such overdue payment. If a law
which applies to this Note is interpreted so that the interest collected
or to be collected hereunder exceeds the legal amount, then the interest
rate charged hereunder shall be reduced by the amount necessary to
reduce the interest charged to the maximum legal amount and this Note
and all sums due hereunder shall immediately become due and payable in
full at the election of the holder hereof. It is agreed that all matured
interest installments outstanding shall also bear interest until paid at
the same rate that continues to accrue on the principal outstanding.
6. Bank and Borrower agree to binding arbitration as provided
in Section 9.20 of the Loan Agreement.
7. The occurrence of any Event of Default specified in the Loan
Agreement or in any of the other Loan Documents or in any other
agreement now or hereafter arising between Borrower and Bank shall
constitute an Event of Default hereunder.
8. The occurrence of any Event of Default shall entitle the
holder hereof to declare the entire principal balance of this Note,
together with all accrued interest, and all other liabilities,
indebtedness and obligations of Borrower to Bank, whether now existing
or hereafter created, to be immediately due and payable, and to take any
and all action allowed the holder by law or equity, under the terms of
this Note and under the terms of any other agreements between Borrower
and Bank.
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9. All rights and remedies of Bank under this Note, any
document securing or relating thereto, and under any other applicable
law or at equity, are and shall be cumulative to the greatest extent
permitted by law. The delay or failure of Bank or the holder hereof to
insist upon strict performance of any of the terms of this Note, or to
exercise any rights herein confirmed shall not be construed as a waiver
or relinquishment to any extent of Bank's or the holder's right to
assert or rely upon such terms or rights at any subsequent time or in
any other instance.
10. Borrower and all endorsers, guarantors and all other parties
to this Note hereby:
(a) consent to the negotiation or assignment of this Note
to any other person at any time;
(b) waive presentment and demand, notice of demand, notice
of dishonor, protest and notice of protest and non-
payment thereof and all other notices or demands in
connection with the delivery, acceptance, performance,
default, enforcement, endorsement or guarantee hereof;
(c) waive all exemptions to which they may now or
hereafter be entitled under the laws of this or any
other state or of the United States;
(d) waive any requirement of marshaling of assets and all
other legal or equitable doctrines which might
otherwise require the holder hereof to proceed against
any persons or any collateral or any other property or
with respect to any other rights in any particular
order and agree that the holder may elect not to
proceed against any collateral securing this note and
may instead seek to enforce and collect this note
through whatever means may otherwise be available at
law or equity; and
(e) agree that Bank shall have the right, but not the
obligation, without notice to Borrower or any other
party, to renew this Note, grant the Borrower
extensions of time for, or changes in the amounts of,
payment of this Note or any other indulgence or
forbearance by Bank, and Bank may release any or all
of the security and collateral for this Note, and
modify the terms of any of the Loan Documents or any
other document securing or relating to this Note, and
may release any guarantors, endorsers or any party to
this Note, and otherwise deal in any way, at any time,
with Borrower, or any guarantor of this Note or with
any other party who may become primarily or
secondarily liable for any of the obligations of
Borrower under this Note, in every instance without
the consent of Borrower or any such other parties and
without in any way affecting the continuing liability
of the Borrower or any such other parties hereunder or
under any of the other Loan Documents.
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11. Upon any Event of Default, Bank shall have the right to set
off, without notice to Borrower, and Borrower hereby grants Bank a
security interest in, any and all deposits, credits, accounts,
securities, certificates of deposit, cash, instruments, documents,
general intangibles and any other property or other sums of Borrower at
any time or times held by Bank or credited by or due from Bank to
Borrower, except those held by Bank in a restricted or fiduciary
capacity, and all products and proceeds thereof, as additional security
for all sums due hereunder and all other liabilities of Borrower to
Bank, whether now existing or hereafter arising or acquired and whether
absolute or contingent.
12. Xxxxxxxx agrees that it will pay to Bank or the holder
hereof all costs and expenses including, without limitation, reasonable
attorneys' fees, incurred by Bank in connection with the preparation of
this Note and all related documentation, the enforcement thereof, and
the collection or attempted collection of the sums due hereunder or in
securing or attempting to secure or protecting and defending or
attempting to protect and defend xxxxxx's interest in any property
securing this Note.
13. BORROWER AND BANK HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY
AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
BETWEEN OR AMONG THEM ARISING OUT OF OR IN ANY WAY RELATED TO THIS NOTE,
ANY OTHER LOAN DOCUMENT OR ANY RELATIONSHIP BETWEEN BANK AND BORROWER.
THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO PROVIDE THE FINANCING
DESCRIBED HEREIN OR IN THE OTHER LOAN DOCUMENTS.
14. Xxxxxxxx agrees that the sole proper venue for the
determination of any litigation commenced by either Borrower or Bank on
any basis shall be in a court of competent jurisdiction which is located
in Fayette County, Kentucky, and the parties hereby expressly declare
that any other venue shall be improper and Borrower expressly waives any
right to a determination of any such litigation against Bank by a court
in any other venue. Xxxxxxxx further agrees that service of process by
any judicial officer or by registered or certified U.S. mail shall
establish personal jurisdiction over Xxxxxxxx, and Borrower waives any
rights under the laws of any state to object to jurisdiction within the
Commonwealth of Kentucky. Xxxxxxxx acknowledges that this Note was
executed and delivered in the Commonwealth of Kentucky and shall be
governed and construed in accordance with the laws thereof. The
aforesaid means of obtaining personal jurisdiction and perfecting
service of process are not intended to be exclusive, but are cumulative
and in addition to all other means of obtaining personal jurisdiction
and perfecting service of process now or hereafter provided by the laws
of the Commonwealth of Kentucky or by any other state in an action
brought by Bank in such state.
15. The substantive laws of the Commonwealth of Kentucky
(without regard to provisions governing conflicts of laws) shall govern
the construction of this Note and the rights and remedies of the parties
hereto.
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16. Time is of the essence in the payment and performance of all
of Borrower's obligations under this Note and all documents securing
this Note or relating hereto.
17. This Note cannot be modified, altered or amended except by
an agreement in writing duly signed and acknowledged by authorized
representatives of Bank and Borrower.
18. If any one or more of the provisions of this Note, or the
applicability of any such provision to a specific situation, shall be
held invalid or unenforceable, such provision shall be modified to the
minimum extent necessary to make it or its application valid and
enforceable, and the validity and enforceability of all other provisions
of this Note and all other applications of any such provision shall not
be affected thereby. In the event such provision(s) cannot be modified
to make it or them enforceable, the invalidity or unenforceability of
any such provision(s) of this Note shall not impair the validity or
enforceability of any other provision of this Note.
19. This Note shall bind the heirs, successors and assigns of
Xxxxxxxx and shall inure to the benefit of Bank and its successors and
assigns. Borrower shall not assign or allow the assumption of its rights
and obligations hereunder without Bank's prior written consent.
20. This Note shall serve as a novation of (i) that certain
Renewal Term Note dated June 20, 1999 by Equity Underwriting Group, Inc.
("EUG") and Equity Insurance Managers, Inc. ("EIM") in favor of Bank in
the principal amount of $800,000.00; (ii) that certain Renewal Term Note
dated June 20, 1999 by EUG and EIM in favor of Bank in the principal
amount of $1,250,000.00; and (iii) that certain Renewal Revolving Credit
Note dated June 20, 1999 by EUG in favor of Bank in the principal amount
of $400,000.00.
DATED as of the day and year first above written.
UNIFIED FINANCIAL SERVICES, INC.,
a Delaware corporation
BY: /s/ Xxxx X. Xxxx
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TITLE: Executive Vice President
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