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Exhibit 10.24
TERM NOTE
$500,000.00 Cincinnati, Ohio
September 23, 1999
For value received, Xxxxxx National Corporation ("Borrower"), promises to
pay to the order of Xxxxx X. Xxxxxx, III, Rollover IRA, Account
#70-70-1001-1090870 ("Lender"), at his offices located at 00000 Xxxxxxx Xxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000-0000 or such other location as Lender
may from time to time designate the principal sum of FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) or such lesser amount as may be advanced and outstanding
hereunder, together with interest xxxxxxx as provided below from the date of
disbursement thereof until paid, all in lawful money of the United States of
America and in immediately available funds.
1. RATE OF INTEREST. The outstanding principal balance of this Note will
bear interest at a rate per annum of the greater of 9 7/8% or 1 5/8% plus
the Prime Rate. All interest calculations under this Note will be made
based on a year of 360 days for the actual number of days in each
interest period. In no event will the rate of interest hereunder exceed
25% per annum. As used herein, "Prime Rate" will mean the rate per annum
established by PNC Bank, National Association from time to time based
upon its consideration of various factors, including money market,
business and competitive factors, and it is not necessarily PNC Bank,
National Association's most favored interest rate. Subject to any maximum
or minimum interest rate limitations specified herein or by applicable
law, if and when such Prime Rate changes while any indebtedness remains
outstanding under this Note, then in each such event the rate of interest
payable under the Note will change automatically without notice to
Borrower effective the date of such changes.
2. PAYMENTS AND APPLICATION OF PAYMENTS. This Note will be payable to Lender
as follows: Accrued interest will be due and payable monthly, commencing
on October 23, 1999, and on the 23rd day of each month thereafter until
September 23, 2002, on which date the entire outstanding principal
balance hereunder and all accrued and unpaid interest will be due and
payable.
Payments received will be applied in the following order: (i) to
repayment of any amounts owed to Lender for charges, fees and expenses
(including (Attorneys' Fees), (ii) to accrued interest, and (iii) to
principal. Additional payments may be made under this Note at any time
without premium or penalty but each such payment will be applied in the
foregoing order and, to the extent applied to principal, will be applied
to installments of principal payable hereunder in the inverse order of
maturity.
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3. LATE PAYMENTS. Any payment under this Note must be received by Lender by
2:00 p.m. Cincinnati time on a Business Day in order to be credited on
such date. If any payment of principal, interest or other amount due
under this Note is not paid within 15 calendar days of the date due,
Borrower also will pay to Lender a late charge equal to the lesser of 5%
of the amount of such payment or $50. The foregoing charge is imposed for
the purpose of defraying Xxxxxx's expenses incident to the handling of
delinquent payments.
4. CHANGE OF CONTROL. Change of control shall mean any transaction or group
of transactions after which (i) Xxxxx X. Xxxxxx, III and Xxxx X. Xxxxxx
(together with their respective executors, administrators or heirs in the
event of the death of either of them) shall directly or indirectly own
less than twenty-five percent (25%) of Xxxxxx National Corporation's
issued and outstanding common stock, (ii) another partnership, limited
partnership, syndicate or other group which is deemed a "person" within
the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934
owns more of Xxxxxx National Corporation's issued and outstanding common
stock than is owned directly or indirectly in the aggregate by Xxxxx X.
Xxxxxx, III and Xxxx X. Xxxxxx (together with their executors,
administrators or heirs in the event of the death of either of them), or
(iii) Xxxxxx National Corporation ceases to own all of the issued and
outstanding capital stock and have full voting control of Xxxxxx Homes,
Inc., and Xxxxxx Holdings, Inc., LLC.
5. EVENTS OF DEFAULT. The occurrence of any of the following events will be
deemed to be an "Event of Default" under this Note: (i) the nonpayment of
any sums, whether principal or interest, when due under this Note, (ii)
the occurrence of any Event of Default under the Borrower's $87,500,000
Second Amended and Restated Credit Agreement with PNC Bank, National
Association dated June 28, 1999, as amended from time to time hereafter
(the "PNC Credit Agreement") and the lapse of any notice or cure period
provided with respect to such default, (iii) the repayment of all
indebtedness and the satisfaction of all the Borrower's obligations
pursuant to the PNC Credit Agreement; (iv) any Change in Control as
defined in Section 4 above; or (v) the filing by or against Borrower of a
petition in bankruptcy, for a reorganization, arrangement or debt
adjustment, or for a receiver, trustee, or similar creditors'
representative for its, his or her property or any part thereof, or of
any other proceeding under any federal or state insolvency or similar law
(and if such petition or proceeding is an involuntary petition or
proceeding filed against Borrower without his, her or its acquiescence
therein or thereto at any time, the same is not promptly contested and,
within 60 days of the filing of such involuntary petition or proceeding,
dismissed or discharged), or the making of any general assignment by
Xxxxxxxx for the benefit of creditors, or Borrower dissolves or is the
subject of any dissolution, winding up or liquidation. Immediately and
automatically upon the occurrence of any Event of Default hereunder, and
without demand or notice of any kind (which are hereby expressly waived):
(i) the outstanding principal balance hereunder, together with all
accrued and unpaid interest thereon will be accelerated and become
immediately due and payable, (ii) Borrower will pay to Lender all
reasonable costs and expenses (including but not limited to Attorneys'
Fees) incurred by Lender in connection with Xxxxxx's efforts to collect
the indebtedness evidenced hereby, and (iii) Lender may exercise from
time to time any of the rights and remedies available to Lender
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under applicable law. Upon and after the occurrence of any Event of
Default or the maturity of this Note (by acceleration or otherwise), the
principal balance under this Note, together with any arrearage of
interest, will bear interest until paid in full, whether before or after
judgment. Borrower, all other makers, co-signers and indorsers waive
presentment, demand, protest, and notice of demand, protest, non-payment
and dishonor. Borrower also waives all defenses based on suretyship or
impairment of collateral.
6 MISCELLANEOUS.
6.1 Nothing contained in this Note regarding late charges will be
construed in any way to extend the due date of any payment or
waive any payment default, and each such right is in addition to,
and not in lieu of, the other and any other rights and remedies of
Lender hereunder, or under applicable law (including, without
limitation, the right to interest, Attorneys' Fees and other
expenses).
6.2 If this Note is executed by more than one person or entity as
"Borrower", the obligations of such parties hereunder will be
joint and several and, unless otherwise specified herein, each
reference to "Borrower" will mean each of such parties
individually and all of such parties collectively.
6.3 This Note will bind Xxxxxxxx and the heirs, executors,
administrators, successors and assigns of Xxxxxxxx, and the
benefits hereof will inure to the benefit of Xxxxxx and its
successors and assigns. All references herein to the "Borrower"
and "Lender" will include the respective heirs, administrators,
successors and assigns thereof; provided, however, that Borrower
may not assign this Note in whole or in part without the prior
written consent of Lender and Lender at any time may assign this
Note in whole or in part (but no assignment by the Lender of less
than all of this Note will operate to relieve Borrower from any
duty to Lender with respect to the unassigned portion of this
Note).
6.4 If any provision of this Note is prohibited by or invalid under
applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity without invalidating the
remainder of such provision and without invalidating any other
provision in this Note; provided, however, that if the provision
that is the subject of such prohibition or invalidity pertains to
repayment of this Note, then, at the option of Lender, all of the
obligations hereunder will become immediately due and payable.
6.5 Without limiting the generality of the foregoing, if from any
circumstances whatsoever the fulfillment of any provision of this
Note involves transcending the limit of validity prescribed by any
applicable usury statute or any other applicable law with regard
to obligations of like character and amount, then the obligation
to be fulfilled will be reduced to the limit of such validity as
provided in such statute or law, so that in no event will any
exaction of interest be possible under this Note in excess of the
limit of such validity and the right to demand any such excess is
hereby expressly waived by Lender. As used in this paragraph,
"applicable usury statute" and "applicable law" mean such statute
and law in effect on the date
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hereof, subject to any change therein that results in a higher
permissible rate of interest.
6.6 No delay or failure on the part of Lender to exercise any right,
remedy or power hereunder, or under applicable law will impair or
waive any such right, remedy or power (or any other right, remedy
or power), be considered a waiver of or an acquiescence in any
breach, default or Event of Default or affect any other or
subsequent breach, default or Event of Default of the same or a
different nature. No waiver of any breach, default or Event of
Default, nor any modification, waiver, discharge or termination of
any provision of this Note, nor consent to any departure by
Borrower therefrom, will be established by conduct, custom or
course of dealing; and no modification, waiver, discharge,
termination or consent will in any event be effective unless the
same is in writing, signed by Lender and specifically refers to
this Note, and then such modification, waiver, discharge or
termination or consent will be effective only in the specific
instance and for the specific purpose for which given. No notice
to or demand on Borrower in any case will entitle Borrower to any
other or further notice or demand in the same or any similar or
other circumstance.
6.7 No single or partial exercise of any right or remedy by Lender
will preclude any other or further exercise thereof or the
exercise of any other right or remedy. All remedies hereunder, or
now or hereafter existing at law or in equity are cumulative and
none of them will be exclusive of the others or of any other right
or remedy. All such rights and remedies may be exercised
separately, successively, concurrently, independently or
cumulatively from time to time and as often and in such order as
Lender may deem appropriate.
6.8 If at any time all or any part of any payment or transfer of any
kind received by Lender with respect to all or any part of this
Note is repaid, set aside or invalidated by reason of any
judgment, decree or order of any court or administrative body, or
by reason of any agreement, settlement or compromise of any claim
made at any time with respect to the repayment, recovery, setting
aside or invalidation of all or any part of such payment or
transfer, Borrower's obligations under this Note will continue
(and/or be reinstated) and Borrower will be and remain liable, and
will indemnify, defend and hold harmless Lender for, the amount or
amounts so repaid, recovered, set aside or invalidated and all
other claims, demands, liabilities, judgments, losses, damages,
costs and expenses incurred in connection therewith. The
provisions of this Section will be and remain effective
notwithstanding any contrary action which may have been taken by
Borrower in reliance upon such payment or transfer, and any such
contrary action so taken will be without prejudice to Xxxxxx's
rights hereunder and will be deemed to have been conditioned upon
such payment or transfer having become final and irrevocable. The
provisions of this Section will survive any termination,
cancellation or discharge of this Note.
6.9 Time is of the essence in the performance of this Note.
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6.10 This Note has been delivered and accepted at and will be deemed to
have been made at Cincinnati, Ohio and will be interpreted and the
rights and liabilities of the parties hereto determined in
accordance with the laws of the State of Ohio, without regard to
conflicts of law principles.
6.11 BORROWER HEREBY IRREVOCABLY AGREES AND SUBMITS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN XXXXXXXX
COUNTY, OHIO, OR, AT THE OPTION OF LENDER IN ITS SOLE DISCRETION,
OF ANY STATE OR FEDERAL COURT(S) LOCATED WITHIN ANY OTHER COUNTY,
STATE OR JURISDICTION IN WHICH LENDER AT ANY TIME OR FROM TIME TO
TIME CHOOSES IN ITS SOLE DISCRETION TO BRING AN ACTION OR
OTHERWISE EXERCISE A RIGHT OR REMEDY, AND BORROWER WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE
OF ANY SUCH ACTION OR PROCEEDING. BORROWER HEREBY IRREVOCABLY
CONSENTS THAT ALL SERVICE OF PROCESS BE MADE BY CERTIFIED MAIL
DIRECTED TO BORROWER AT ITS ADDRESS SET FORTH IN THE LOAN
AGREEMENT ABOVE FOR NOTICES AND SERVICE SO MADE WILL BE DEEMED TO
BE COMPLETED UPON XXXXXXXX'S ACTUAL RECEIPT THEREOF, POSTAGE
PREPAID. NOTHING CONTAINED HEREIN WILL PREVENT XXXXXX FROM SERVING
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. XXXXXXXX AND XXXXXX
EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
RELATING TO THIS NOTE, THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS,
THE LOAN AGREEMENT OR ANY ACTUAL OR PROPOSED TRANSACTION OR OTHER
MATTER CONTEMPLATED IN OR RELATING TO ANY OF THE FOREGOING.
XXXXXX NATIONAL
CORPORATION
By:____________________________
Print Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
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