Demand Note
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$11,033,333.34 July 24, 2000
FOR VALUE RECEIVED, the undersigned, Xxx X. Xxxxx, Xxxxxxx X. Xxxx,
and X. Xxxx Xxxxxxxxx, as trustees of the Issue Trust for Xxx X. Xxxxx created
by agreement dated December 18, 1997 (collectively, "Maker"), hereby promise to
pay to the order of Xxxxxx X. Xxxxx, as trustee of the Xxxxxx X. Xxxxx Revocable
Trust created by agreement dated December 18, 1997 ("Payee"), the principal sum
of $11,033,333.34 on demand by Payee or, if demand is not sooner made by Xxxxx,
on or before December 31, 2019, together with interest on the unpaid balance
thereof from the date hereof until maturity at the rate herein provided.
Interest on the principal balance hereof shall accrue at a variable
rate, compounded monthly, equal to the lesser of (i) the Applicable Federal Rate
(as hereinafter defined) or (ii) the maximum nonusurious interest rate as in
effect from time to time which may be charged, contracted for, received or
collected by Payee in connection with the transactions contemplated by and
evidenced in this note and all documents executed in connection herewith (the
"Highest Lawful Rate").
The term "Applicable Federal Rate" as used herein shall mean the
applicable federal short-term rate for monthly compounding promulgated each
month by the U.S. Treasury Secretary pursuant to section 1274(d) of the Internal
Revenue Code of 1986, as amended (the "Code"), automatically fluctuating upward
and downward each month (without special notice to the Maker or any other
person) as required under section 7872(f) of the Code in order to prevent the
indebtedness evidenced by this note from being deemed a "below market loan"
under section 7872(e) of the Code.
Interest on this note shall be due and payable as it accrues on the
last day of each calendar year, commencing with the first payment of accrued
interest on December 31, 2000, and continuing through and including maturity.
All payments and prepayments made in accordance with this note shall be applied
first to payment of accrued and unpaid interest and then to payment of unpaid
principal amounts outstanding hereunder.
Maker may from time to time prepay all or any portion of the
outstanding balance of this note on any Business Day without penalty or premium.
As used herein, a "Business Day" shall mean any day other than a Saturday,
Sunday or other day on which banks in Missouri are permitted or required by law
to be closed. All payments and prepayments made in accordance with this note in
respect of principal and interest on this note are to be made in lawful money of
the United States of America no later than 12 o'clock noon, central time, in
same day funds, at 0000 Xxxxxxxx, X. X. Box 419139, Kansas City, MO 64141, or
such other place as the holder hereof shall designate in writing to Maker. Maker
shall have no right to reborrow under this note any amounts paid or prepaid in
respect of principal or interest on this note.
If any payment or prepayment of principal or interest on this note
shall become due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and such extension of time shall in
such case be included in computing interest in connection with such payment.
In addition to all principal and accrued interest on this note, Maker
agrees to pay (a) all reasonable costs and expenses incurred by all owners and
holders of this note in collecting this note through any probate,
reorganization, bankruptcy or any other proceeding and (b) reasonable attorneys'
fees when and if this note is placed in the hands of an attorney for collection
after demand.
All agreements between Maker and Payee, whether now existing or
hereafter arising and whether written or oral, are hereby expressly limited so
that in no contingency or event whatsoever, whether by reason of demand being
made on this note or otherwise, shall the amount paid, or agreed to be paid, to
Payee for the use, forbearance, or detention of the money evidenced by this note
or otherwise or for the payment or performance of any covenant or obligation
contained in this note or any other document, agreement or instrument executed
in connection with or given as security for this note, exceed the Highest Lawful
Rate. If, as a result of any circumstances whatsoever, fulfillment of any
provision hereof or of any of such documents, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by applicable usury law, then, ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity, and if, from any such
circumstance, Payee shall ever receive interest or anything which might be
deemed interest under applicable law which would exceed the Highest Lawful Rate,
such amount which would be excessive interest shall be applied to the reduction
of the principal amount owing on account of this note or the amounts owing on
other obligations of Maker to Payee and not to the payment of interest, or if
such excessive interest exceeds the unpaid principal balance of this note and
the amounts owing on other obligations of Maker to Payee, as the case may be,
such excess shall be refunded to Maker. In determining whether or not the
interest paid or payable under any specific contingencies exceeds the Highest
Lawful Rate, Maker and Payee shall, to the maximum extent permitted under
applicable law, (a) characterize any nonprincipal payment as an expense, fee or
premium rather than as interest; (b) exclude voluntary prepayments and the
effects thereof; and (c) amortize, prorate, allocate and spread in equal parts
during the period of the full stated term of this note, all interest at any time
contracted for, charged, received or reserved in connection with the
indebtedness evidenced by this note.
Maker and any and all endorsers, guarantors and sureties severally
waive grace, presentment for payment, notice of dishonor, notice of intent to
accelerate, notice of acceleration, protest and notice of protest and diligence
in collecting and bringing of suit against any party hereto, and agree to all
modifications, renewals, extensions, substitutions or replacements hereof or
partial payments hereon and to any release or substitution of security, if any,
hereof, in whole or in part, with or without notice, before or after maturity.
This note may be transferred by Payee, and the rights and privileges of Payee
under this note shall inure to the benefit of Xxxxx's representatives,
successors and assigns.
This note is secured by and entitled to the benefits of that certain
Security Agreement of even date herewith executed by Maker for the benefit of
Payee (the "Security Agreement"). Notwithstanding that Maker may be in strict
compliance with its covenants and obligations under this note and the Security
Agreement including, without limitation, having timely made all payments of
accrued interest hereon, Maker hereby acknowledges and agrees that Payee or any
other owner and holder of this note may, at any time, and in his, her or its
sole and absolute discretion, demand payment in full of the principal amount of
this note and all accrued and unpaid interest hereon, whereupon all unpaid
principal and accrued interest hereof shall forthwith become immediately due and
payable, without notice of intent to accelerate, notice of acceleration,
presentment, other demand, protest or other notice of any kind to Maker, all of
which are expressly waived.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE
STATE OF MISSOURI AND FOR ALL PURPOSES SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF SAID STATE AND APPLICABLE FEDERAL LAWS. Maker
further agrees that the consideration furnished to Maker is related solely to
business, commercial, investment or other similar purposes and not personal,
family or agricultural purposes.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
/s/ Xxx X. Xxxxx, Trustee of the Issue Trust for Xxx X. Xxxxx
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Xxx X. Xxxxx, Trustee of the GST Trust for Xxx X. Xxxxx
Date:7/24/00
/s/ Xxxxxxx X. Xxxx, Trustee of the Issue Trust for Xxx X. Xxxxx
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Xxxxxxx X. Xxxx, Trustee of the GST Trust for Xxx X. Xxxxx
Date:7/24/00
/s/ X. Xxxx Xxxxxxxxx, Trustee of the Issue Trust for Xxx X. Xxxxx
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X. Xxxx Xxxxxxxxx, Trustee of the GST Trust for Xxx X. Xxxxx
Date:7/24/00
