THE INDEBTEDNESS EVIDENCED BY THIS NOTE IS SUBORDINATE AND JUNIOR IN ALL
RESPECTS TO ANY AND ALL INDEBTEDNESS, OBLIGATIONS AND LIABILITIES OF THE MAKER
HEREOF TO SOUTHEAST BANK, N.A., AND BANK OF OKLAHOMA, NATIONAL ASSOCIATION IN
THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AGREEMENT,
DATED AS OF OCTOBER 1, 1990 (THE "SUBORDINATION AGREEMENT"), FROM THE MAKER AND
THE HOLDER IN FAVOR OF SOUTHEAST BANK, N.A., BANK OF OKLAHOMA, NATIONAL
ASSOCIATION AND SOUTHEAST BANK, N.A., AS AGENT (COLLECTIVELY, THE "SENIOR
CREDITORS"), TO WHICH REFERENCE IS HEREBY MADE FOR A MORE FULL STATEMENT
THEREOF.
PROMISSORY NOTE
Dated as of October 1, 1990 $500,000.00 Tulsa, Oklahoma
FOR VALUE RECEIVED, the undersigned, WJA Realty Limited Partnership, a
Massachusetts Limited Partnership ("Maker"), promises to pay to the order of
Xxxxxxx-Phoenix, Inc., an Oklahoma Corporation (hereafter, together with any
holder hereof, called "Holder"), at the office of the Holder, c/o Xxxxx X.
Xxxxxxx, Xx., at 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000, or at such
other place as the Holder may designate and notify the undersigned, in lawful
money of the United States, and in immediately available funds, the principal
sum of FIVE HUNDRED THOUSAND AND NO/100THS DOLLARS ($500,000.00), together with
interest on the principal balance outstanding hereunder (computed on the basis
of a 360 day year) from the date hereof until paid in full at the rate of
thirteen percent (13%) per annum.
Accrued interest shall be payable hereunder quarterly beginning December 31,
1990. Principal on this note shall be due July 31, 1992.
Overdue principal (and interest to the extent permitted by law) shall bear
interest at the rate of one and one-half percent (1.5%) per month in excess of
the interest rate otherwise in effect hereunder until paid, and shall be payable
on demand.
Maker acknowledges that this Promissory Note is secured pursuant to the terms of
the following instruments (the "Security Documents" which are incorporated by
reference herein:
(b) Assignment of Pari-Mutuel Permits by Maker to Holder;
(c) Assignment of Beneficial Interest in Land Trust by Maker to Holder.
Maker may, at its option, voluntarily prepay the indebtedness evidenced by this
Note, either in whole or in part, at any time without penalty, with interest
thereon to the date of prepayment.
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If (1) Maker fails to pay any installment of principal and interest that is due
and payable within ten (10) days after written notice and demand to the Maker;
(2) Maker neglects to comply with any of the terms or provisions hereof; (3)
Maker executes or makes an assignment for the benefit of its creditors and/or a
receiver or trustee is appointed for its creditors or the Maker is unable
generally to pay its debts as they become due; (4) any petition for and/or any
order for relief is filed and/or entered against Maker under Xxxxx 00, Xxxxxx
Xxxxxx Code, and Maker by any act indicates its approval thereof, consent
thereto, or acquiescence therein, or any such order for relief remains in effect
unstayed for more than sixty (60) days; (5) Maker commences any proceedings
relating to Maker under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation statutes of any jurisdiction or
under Xxxxx 00, Xxxxxx Xxxxxx Code, whether now or hereafter in effect; (6)
there is a seizure and sale, or post judgment attachment or post judgment
garnishment or other post judgment judicial process upon all or a substantial
part of the property of Maker; or (7) a default occurs as is defined in the
Security Documents and such default is not either waived, or cured within the
period of time permitted for such cure by such Security Documents, then the
Holder upon the occurrence of any such event, may at the option of the Holder,
declare any or all of the indebtedness evidenced by this Note to be immediately
due and payable, and the Holders shall be entitled to exercise any and all
rights and remedies that the Holders has against Maker, including foreclosure
under the Security Documents.
In case this Note should be placed in the hands of an attorney for collection,
compromise or other action, Maker agrees to pay the fees of the attorney who may
be employed for that purpose. Where permitted by law, Maker shall also pay all
court costs and disbursements incurred by the holder hereof when it is referred
for collection.
Maker hereby waives presentment for payment, demand, notice of nonpayment,
protest, and notice of protest, and agrees that the time of payment hereof may
be extended from time to time, one or more times without notice of such
extension or extensions and without previous consent. No delay on the part of
the Holder in exercising any rights hereunder shall operate as a waiver of such
rights, nor shall any single or partial exercise of any power or right hereunder
preclude other or further exercise of any power or right hereunder.
This Note has been executed and delivered in, and its terms and conditions are
to be governed and construed by, the internal laws of the State of Oklahoma.
This Note shall be binding upon the successors and assigns of Maker.
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Any provision of this Note to the contrary notwithstanding:
1. This Note is executed and delivered to the Holder by the Maker subject
to the terms and provisions of the Subordination Agreement, and by its
acceptance of this Note Holder hereby expressly acknowledges that its
rights to receive payment of this Note and to collect and enforce
collection of this Note, and to foreclose upon, liquidate or otherwise
pursue or realize upon any collateral given as security for this Note, are
expressly subject to and limited by the terms and provisions of the
Subordination Agreement.
2. Without limiting the generality of the provisions of clause 1 above,
if, as of the date any payment is due on or with respect to this Note,
after giving effect to any such payment, any Default or Event of Default
(as such terms are defined in the Subordination Agreement) shall have
occurred and would be continuing, such payment shall not be permitted to be
made, and if, as of any principal payment date hereunder, the Maker is
indebted to the Senior Creditors, or any of them, maker shall not pay any
such principal payment then due under this Note until any and all
indebtedness of the Maker to the Senior Creditors, and each of them, shall
have been paid in full, and any commitments of the Senior Creditors, and
each of them, to extend further credit to the Maker shall have been
terminated in full.
Anything herein to the contrary notwithstanding, the obligations of the Maker
under this Note shall be subject to the limitation that payments of interest to
the Holder shall not be required to the extent that receipt of any such payment
by the Holder would be contrary to provisions of law applicable to the Holder
(if any) which limit the maximum rate of interest which may be charged or
collected by the Holder; PROVIDED, HOWEVER, that nothing herein shall be
construed to limit the Holder to presently existing maximum rates of interest,
if an increased interest rate is hereafter permitted by reason of applicable
federal or state legislation. In the event that the Maker makes any payment of
interest, fees, or other charges, however denominated, pursuant to this Note,
which payment results in the interest paid to the Holder to exceed the maximum
rate of interest permitted by applicable law, any excess over such maximum shall
be applied in reduction of the principal balance owed to the Holder as of the
date of such payment, or if such excess exceeds the amount of principal owed to
the Holder as of the date of such payment, the difference shall be paid by the
Holder to the Maker.
This Note and the obligations, agreements and undertakings of the Maker under
this Note are the obligations, agreements and undertakings of the Maker as a
partnership, and shall bind and be effective as against all of the assets of the
Maker, and no recourse shall be had against the other assets of each of the
partners of the Maker for the payment of the indebtedness of the Maker under
this Note; PROVIDED, HOWEVER, the general partners of the Maker shall be fully
liable to the Holder for their own gross
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negligence and/or willful misconduct in performing or observing, or failing to
perform or observe, or causing the Borrower to, or to fail to, perform or
observe, any of the covenants, terms or conditions of this Note.
THE BORROWER HEREBY, AND THE LENDER BY ITS ACCEPTANCE OF THIS NOTE, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS NOTE OR SAID AMENDED AND RESTATED CREDIT AGREEMENT AND ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH OR THEREWITH, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN)
OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
LENDER ENTERING INTO THE FIRST AMENDMENT AND AMENDING SAID AMENDED AND RESTATED
CREDIT AGREEMENT AND MAKING THE LOANS EVIDENCED BY THIS NOTE.
IN WITNESS WHEREOF, the Maker has caused this Note to be dated for convenience
as of the date first above written, but has in fact executed this Note this 5th
day of October, 1990.
WJA REALTY LIMITED PARTNERSHIP, a
Massachusetts limited partnership
By: /s/ Xxxxx X. Xxxxxxx, Xx.
---------------------------------
Xxxxx X. Xxxxxxx, Xx.
General Partner
STATE OF OKLAHOMA )
)ss:
COUNTY OF TULSA )
Sworn to and subscribed before me this 5th day of October, 1990.
/s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Notary Public, State of Oklahoma
My Commission Expires: March 28, 1994
-----------------------
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