THIRD AMENDED, CONSOLIDATED AND RESTATED PROMISSORY NOTE
EXHIBIT
10.37
THIRD
AMENDED, CONSOLIDATED AND RESTATED PROMISSORY
NOTE
($5,630,000)
$5,630,000.00 Louisville,
Kentucky
April
2,
2007
FOR
VALUE RECEIVED,
the
undersigned, CITIZENS
FINANCIAL CORPORATION,
a
Kentucky corporation (“Borrower”),
having an address of Suite 300, The Marketplace, 00000 Xxxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, hereby promises and agrees to pay to the order
of
Xxxxxxx X. Xxxxx (“Lender”),
having an address of Suite 000, 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
00000, the aggregate principal sum of FIVE
MILLION SIX HUNDRED THIRTY THOUSAND DOLLARS
($5,630,000.00), or so much thereof as may be advanced hereunder, together
with
interest hereon as hereinafter provided, in lawful money of the United States
of
America, in the manner set forth herein, on or before June 30, 2007 (the
“Final
Maturity Date”).
This
Third Amended, Consolidated and Restated Promissory Note (this “Note”)
amends, consolidates, restates and replaces the Second Amended, Consolidated
and
Restated Promissory Note ($5,330,000) dated as of December 28, 2006 made by
Maker to the order of Payee (the “Prior
Note”).
This
Note is not intended to be and shall not be construed as a novation of the
indebtedness evidenced by the Prior Note. This Note shall be entitled to the
benefits (in the same priority) of, inter alia,
any
security at any time granted and pledged by Maker to Payee in conjunction with
the original execution and delivery of the Prior Note or predecessor notes
or by
Maker or any other person at any time thereafter. This Note also evidences
an
additional loan from Lender to Borrower made on the date hereof in the original
principal amount of Three Hundred Thousand Dollars ($300,000.00).
The
principal of this Note shall bear interest on the unpaid balance thereof at
a
rate per annum equal to the greater
of [i]
six percent (6%) or [ii] one percent (1%) in excess of the Prime Rate as it
existed at the opening of business on April 1, 2007. The rate per annum shall
be
reset at the opening of business on the first day of each July, October, January
and April hereafter (each an “Adjustment
Date”)
so
that for the calendar quarter beginning on that day the rate per annum shall
equal the greater
of [i]
six
percent (6%) or [ii] one percent (1%) in excess of the Prime Rate at the opening
of business on that day. The “Prime
Rate,
as used
in this Note, shall mean that rate of interest announced from time to time
by
National City Bank, Kentucky (the “Bank”)
to be
its prime rate at its principal office in Louisville,
Kentucky, it being understood and agreed that such rate shall not necessarily
be
the lowest rate the Bank then offers to its most creditworthy borrowers. As
of
April 1, 2007, the Prime Rate of the Bank is eight
and
one-quarter percent (8-1/4%),
and
accordingly the interest rate per annum on this Note until the first Adjustment
Date shall be nine and one-quarter percent (9-1/4%).
All
interest on this Note shall be computed daily on the basis of the actual number
of days elapsed over a year assumed to consist of three hundred sixty (360)
days.
Principal
of this Note shall be paid in a single payment on the Final Maturity Date.
All
accrued and unpaid interest shall be paid on each Adjustment Date for the
preceding calendar
The
holder of this Note shall have the right to require repayment in full of this
Note in whole or in part and all accrued and unpaid interest hereon by giving
written notice to Borrower at the address first set forth above specifying
a
date for repayment that shall be not less than ninety (90) days after the date
Borrower receives such notice.
Borrower
reserves the right to repay the principal of this Note in whole or in part
without penalty or premium at any time; provided, however, that Borrower shall
have no right to reborrow any amounts so repaid.
All
payments of principal and interest and any other sums due under this Note shall
be made in immediately available funds to Lender at its address set forth above
in this Note or to such other person or at such other address as may be
designated in writing by the holder of this Note. All payments on this Note
shall be applied first to the payment of any expenses or charges payable
hereunder, and next to accrued interest, and then to the principal balance
hereof, or in such other order as Lender may elect in its sole discretion.
Any
payment on this Note that is overdue for more than five (5) days from its due
date shall, if requested by and at the sole option of the holder of this Note,
in order to compensate the holder for the inconvenience and administrative
expense incident to such delinquency and not as a penalty, be increased by
an
amount equal to five percent (5%) of the overdue payment, unless such increase
would exceed the maximum increase permitted by law, in which event the overdue
payment shall be increased by such lesser increment, if any, as would not exceed
the maximum increase permitted by law. The charging or collection of a late
charge shall not be deemed a waiver of any of the holder’s other rights and
remedies hereunder, including, if applicable, the right to exercise the remedies
of the holder upon a default under this Note as hereinafter provided.
The
occurrence of any one or more of the following shall constitute a default under
this Note: [i] Borrower does not pay any installment of principal of, or
interest on, this Note as and when due or within five (5) days thereafter;
[ii]
a proceeding is filed or commenced against Borrower for dissolution or
liquidation that is not dismissed within sixty (60) days after filing; [iii]
Borrower becomes insolvent, or a custodian, trustee, liquidator or receiver
is
appointed for Borrower or for any of its property, or Xxxxxxxx makes an
assignment for the benefit of its creditors, files a petition under bankruptcy,
insolvency or debtor’s relief law or for any readjustment of indebtedness,
composition or extension or [iv] any such proceeding is filed against Borrower
and is not dismissed within sixty (60) days).
Whenever
there is a default under this Note, the entire principal balance of and all
accrued interest on this Note, shall, at the option of Lender, become forthwith
due and payable, without presentment, notice, protest or demand of any kind
(all
of which are expressly waived by Borrower). Upon any such default, the rate
of
interest applicable to the entire unpaid principal balance of this Note shall,
at the sole and exclusive option of the holder of this Note, be increased by
four percent (4%) per annum, unless the resulting rate would exceed the maximum
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This
Note
is hereby expressly limited so that in no event whatsoever, whether by reason
of
acceleration of the maturity hereof or otherwise, shall the amount paid or
agreed to be paid to the holder of this Note for the use, forbearance or
retention of money loaned hereunder exceed the maximum amount permissible under
applicable law. If from any circumstance the holder of this Note shall ever
receive anything of value deemed by applicable law to be interest in any amount
that would exceed the highest lawful rate payable hereunder, an amount equal
to
any excessive interest shall be applied to the reduction of the principal amount
owing hereunder and not to the payment of the interest, and if the amount that
would be excessive interest exceeds the principal balance then owing, such
excess shall be refunded to the party paying the same.
Failure
of the holder of this Note to exercise any of its rights and remedies shall
not
constitute a waiver of the right to exercise the same at that or any other
time.
All rights and remedies of the holder for default under this Note shall be
cumulative to the greatest extent permitted by law. Time shall be of the essence
in the payment of all installments of interest and principal on this Note and
the performance of Xxxxxxxx’s other obligations under this Note.
If
there
is any default under this Note, and this Note is placed in the hands of an
attorney for collection or is collected through any court, including any
bankruptcy court, Borrower promises to pay to the holder hereof its reasonable
attorneys’ fees and court costs incurred in collecting or attempting to collect
or securing or attempting to secure this Note or enforcing the holder’s rights
in any collateral securing this Note, provided the same is legally allowed
by
the laws of the Commonwealth of Kentucky or any state where the collateral
or
part thereof is situated.
If
any
provision, or portion thereof, of this Note, or the application thereof to
any
persons or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Note, or the application of such provision, or portion
thereof, to any other person or circumstances shall not be affected thereby,
and
each provision of this Note shall be valid and enforceable to the fullest extent
permitted by law.
This
Note, including matters of construction, validity and performance, and the
obligations arising hereunder, shall be construed in accordance with and
otherwise governed in all respects by the laws of the Commonwealth of Kentucky
applicable to contracts made and performed in such state and any applicable
law
of the United States of America.
Borrower
and any other party who may become primarily or secondarily liable for any
of
the obligations of Borrower hereunder hereby jointly and severally waive
presentment, demand, notice of dishonor, protest, notice of protest, and
diligence in collection, and further waive all exemptions to which they may
now
or hereafter be entitled under the laws of the Commonwealth of Kentucky or
any
other state or of the United States, and further agree that the holder of this
Note shall have the right without notice, to deal in any way, at any time,
with
Borrower, or with any other party who may become primarily or secondarily liable
for, or pledge any collateral as security for, any of the obligations of
Borrower under this Note and to grant any extension of time for payment of
this
Note or any other indulgence or forbearance whatsoever, and may
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Borrower
hereby consents to the jurisdiction of any state or federal court located within
the County of Jefferson, Commonwealth of Kentucky, and irrevocably agrees that,
subject to Xxxxxx’s sole and absolute election, any case or proceeding relating
to Title 11 of the United States Code and any actions relating to the
indebtedness evidenced hereby shall be litigated in such courts, and Borrower
waives any objection that it may have based on improper venue or forum non
conveniens to the conduct of any proceeding in any such court. Nothing contained
in this paragraph shall affect the right of Lender to bring any action or
proceeding against Borrower or its property in the courts of any other
jurisdiction.
XXXXXX
AND BORROWER ACKNOWLEDGE THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY
EXCEED THE TIME AND EXPENSE REQUIRED FOR A BENCH TRIAL AND HEREBY KNOWINGLY
AND
VOLUNTARILY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, AND AFTER HAVING
CONSULTED OR HAVING HAD AMPLE OPPORTUNITY TO CONSULT THEIR RESPECTIVE LEGAL
COUNSEL CONCERNING THE CONSEQUENCES OF SUCH WAIVER, TRIAL BY JURY IN ANY ACTION
OR OTHER PROCEEDING BROUGHT TO ENFORCE OR DEFEND AGAINST COLLECTION OF OR
OTHERWISE IN CONNECTION WITH THIS NOTE OR ANY RELATED DOCUMENTS.
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CITIZENS
FINANCIAL CORPORATION
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By:
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/s/
Xxx X. Xxxxxxxxxx____
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Xxx
X. Xxxxxxxxxx
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Vice
President, Accounting,
and Chief
Financial
Officer
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