RENEWAL TERM NOTE
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("Note")
UNIFIED FINANCIAL SERVICES, INC.
a Delaware corporation
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
$1,893,750.00
DATE: February 27, 2001
Executed at Lexington, Kentucky
1. FOR VALUE RECEIVED, UNIFIED FINANCIAL SERVICES, INC. ("Borrower"),
promises to pay to the order of BANK ONE, KENTUCKY, NA, a national banking
association (the "Bank"), the principal sum of One Million Eight Hundred
Ninety Three Thousand Seven Hundred Fifty and 00/100 Dollars ($1,893,750.00)
so much thereof as may be advanced by Bank and outstanding under this Note
pursuant to the Loan Agreement between Borrower and Bank dated as of
December 28, 1999, as amended on June 28, 2000 and on February 27, 2001 (as
amended, the "Loan Agreement") 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. This Note represents a renewal, and not a novation, of that certain
Renewal Term Note dated June 28, 2000, in the original principal sum of
$1,893,750.00. All terms not otherwise defined herein shall have the same
meaning given to them in the Loan Agreement. This Note, the Loan Agreement
and any and all other documents referred to in the Loan Agreement or
instruments securing repayment of this Note or relating thereto, whether
made by Borrower or any other person(s) or entities, are hereinafter
referred to collectively as the "Loan Documents".
3. Borrower shall repay this Note by paying (i) Ninety Three Thousand
Dollars ($93,000.00) on the date of this Note, which amount shall be applied
to the principal balance outstanding, and (ii) accrued interest monthly
beginning on April 1, 2001, and continuing on the 1st day of each month
thereafter until April 30, 2002 (the "Maturity Date"), plus (iii) principal
payments of One Hundred Thousand Dollars ($100,000.00) every three months
beginning on July 1, 2001, and continuing on the 1st of each third month
thereafter until 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.
4. The obligations evidenced by this Note and the Loan Agreement are
secured by the Security Agreements as defined in the Loan Agreement.
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
(as defined in Section 7 hereof) 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.
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;
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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.
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 any
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
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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.
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.
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: President
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