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EXHIBIT 10.43
COMMERCIAL NOTE: TIME SINGLE ADVANCE/FIXED
Amount City, State Date FOR BANK USE ONLY
$5,000,000.00 Indianapolis, Indiana September 30 , 1996 Obligor #
Tax I. D. #
Obligation #
Office
FOR VALUE RECEIVED, WABASH NATIONAL FINANCE CORPORATION ("BORROWER"), an Indiana
corporation, whose principal office address is 0 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000, hereby promises to pay to the order of NATIONAL CITY
BANK OF INDIANA ("Bank"), a national banking association having its banking
office at 000 X. Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, at Bank's
banking office (or at such other place as Bank may from time to time designate
by written notice) in lawful money of the United States of America, the
principal sum of
FIVE MILLION AND NO/100 DOLLARS
$5,000,000.00
together with interest, all as provided below.
1. Interest. The unpaid principal balance of this Note shall at all times bear
interest at a fixed rate equal to Six and one half percent ( 6 1/2%) per annum,
provided, that so long as any principal of or accrued interest on this Note is
overdue, all unpaid principal of this Note and all overdue interest on that
principal (but not interest on overdue interest) shall bear interest at a
fluctuating rate equal to two percent (2%) per annum above the rate that would
otherwise be applicable, but in no case less than two percent (2%) per annum
above the Prime Rate; provided further, that in no event shall any principal
of or interest on this Note bear interest at any time after Maturity at a
lesser rate than the rate applicable thereto immediately after Maturity.
2. Repayment. Subject to section 5, the total outstanding balance of principal
and interest under this Note is due and payable on December 2, 1996.
This Note may not be prepaid. If however for any reason the principal of this
Note is paid (whether by way of a prepayment or a payment following any
acceleration of the due date thereof) in whole or in part before the original
due date of that principal, then, and in each such case, Borrower shall,
concurrently with the payment, pay to Bank a premium based on the principal
amount paid and computed for the period from the date of payment to the
original due date of the principal paid, at a rate equal to the excess, if any,
of the interest rate theretofore applicable over the Reinvestment Rate.
"Reinvestment Rate" means, when used with respect to any period, a per annum
rate of interest equal to the "bond equivalent yield" for the most actively
traded issues of U. S. Treasury Bills, U. S. Treasury Notes, or U. S. Treasury
Bonds for a term similar to the period in question.
3. Definitions. As used in this Note, except where the context clearly requires
otherwise, "Affiliate" means, when used with reference to any Person (the
"subject"), a Person that is in control of, under the control of, or under
common control with, the subject, the term "control" meaning the possession,
directly or indirectly, of the power to direct the management or policies of a
Person, whether through the ownership of voting securities, by contract, or
otherwise; "Bank Debt" means, collectively, all Debt to Bank, whether incurred
directly to Bank or acquired by it by purchase, pledge, or otherwise, and
whether participated to or from Bank in whole or in part; "Banking Day" means
any day (other than any Saturday, Sunday or legal holiday) on
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which Bank's banking office is open to the public for carrying on substantially
all of its banking functions; "Debt" means, collectively, all obligations of
the Person or Persons in question, including, without limitation, every such
obligation whether owing by one such Person alone or with one or more other
Persons in a joint, several, or joint and several capacity, whether now owing
or hereafter arising, whether owing absolutely or contingently, whether created
by lease, loan, overdraft, guaranty of payment, or other contract, or by
quasi-contract, tort, statute, other operation of law, or otherwise; "MATURITY"
means the date (whether occurring by lapse of time, acceleration, or
otherwise) upon which the last scheduled principal payment under this note is
due; "Note" means this promissory note (including, without limitation, each
addendum, allonge, or amendment, if any, hereto); "Obligor" means any Person
who, or any of whose property, shall at the time in question be obligated in
respect of all or any part of the Bank Debt of Borrower and (in addition to
Borrower) includes, without limitation, co-makers, indorsers, guarantors,
pledgors, hypothecators, mortgagors, and any other Person who agrees,
conditionally or otherwise, to make any loan to, purchase from, or investment
in, any other Obligor or otherwise assure such other Obligor's creditors or any
of them against loss; "Person" means an individual or entity of any kind,
including, without limitation, any association, company, cooperative,
corporation, partnership, trust, governmental body, or any other form or kind
of entity; "Prime Rate" means the fluctuating rate per annum which is publicly
announced from time to time by Bank as being its so-called "prime rate" or
"base rate" thereafter in effect, with each change in the Prime Rate
automatically, immediately, and without notice changing the Prime Rate
thereafter applicable hereunder, it being acknowledged that the Prime Rate is
not necessarily the lowest rate of interest then available from Bank on
fluctuating-rate loans; "Proceeding" means any assignment for the benefit of
creditors, any case in bankruptcy, any marshalling of any Obligor's assets for
the benefit of creditors, any moratorium on the payment of debts, or any
proceeding under any law relating to conservatorship, insolvency, liquidation,
receivership, trusteeship, or any similar event, condition, or other thing;
"Related Writing" means this Note and any indenture, note, guaranty,
assignment, mortgage, security agreement, subordination agreement, notice,
financial statement, legal opinion, certificate, or other writing of any kind
pursuant to which all or any part of the Bank Debt of Borrower is issued, which
evidences or secures all or any part of the Bank Debt of Borrower, which
governs the relative rights and priorities of Bank and one or more other
Persons to payments made by, or the property of, any Obligor, which is
delivered to Bank pursuant to another such writing, or which is otherwise
delivered to Bank by or on behalf of any Person (or any employee, officer,
auditor, counsel, or agent of any Person) in respect of or in connection with
all or any part of the Bank Debt of Borrower; "Reporting Person" means each
Obligor and each member of any "Reporting Group" as defined in any addendum to
this Note; and the foregoing definitions shall be applicable to the respective
plurals of the foregoing defined terms.
4. Events of Default. It shall be an "Event of Default" if (a) all or any part
of the Bank Debt of any Obligor shall not be paid in full promptly when due
(whether by lapse of time, acceleration, or otherwise); (b) any
representation, warranty, or other statement made by any Person (other than
Bank) in any Related Writing shall be untrue or incomplete in any respect when
made; (c) any Person (other than Bank) shall repudiate or shall fail or omit to
perform or observe any agreement contained in this Note or in any other Related
Writing that is on that Person's part to be complied with; (d) any indebtedness
(other than any evidenced by this Note) of any Obligor shall not be paid when
due, or there shall occur any event, condition, or other thing which gives (or
which with the lapse of any applicable grace period, the giving of notice, or
both would give) any creditor the right to accelerate or which automatically
accelerates the maturity of any such indebtedness; (e) Bank shall not receive
(in addition to any information described in any addendum to this Note) without
expense to Bank, (i) forthwith upon each request of Bank made upon Borrower
therefor, (A) such information in writing regarding each Reporting Person's
financial condition, properties, business operations, if any, and pension
plans, if any, prepared, in the case of financial information, in accordance
with generally accepted accounting principles consistently applied and
otherwise in form and detail satisfactory to Bank or (B) written permission,
in form and substance satisfactory to Bank, from each Reporting Person to
inspect (or to have inspected by one or more Persons selected by Bank) the
properties and records of that Reporting Person and to
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make copies and extracts from those records or (ii) prompt written notice
whenever Borrower (or any director, employee, officer, or agent of Borrower)
knows or has reason to know that any Event of Default has occurred; (f) any
judgment shall be entered against any Obligor in any judicial or administrative
tribunal or before any arbitrator or mediator, (g) any Obligor shall fail or
omit to comply with any applicable law, rule, regulation, or order in any
material respect; (h) any proceeds of the loan evidenced by this Note shall be
used for any purpose that is not in the ordinary course of Borrower's business;
(i) any property in which any obligor now has or hereafter acquires any rights
or which now or hereafter secures any Bank Debt shall be or become encumbered by
any mortgage, security interest, or other lien, except any mortgage, security
interest, or other lien consented to by Bank; (j) any Obligor shall at any time
or over any period of time sell, lease, or otherwise dispose of all or any
material part of that Obligor's assets, except for inventory sold in the
ordinary course of business and other assets sold, leased, or otherwise
disposed of with the consent of Bank; (k) any Obligor shall cease to exist or
shall be dissolved, become legally incapacitated, or die; (l) any Proceeding
shall be commenced with respect to any Obligor; (m) there shall occur or
commence to exist any event, condition, or other thing that constitutes an
"Event of Default" as defined in any addendum to this Note; (n) there shall
occur any event, condition, or other thing that has, or, in Bank's judgment, is
likely to have, a material adverse effect on the financial condition,
properties, or business operations of any Obligor or on Bank's ability to
enforce or exercise any agreement or right arising under, out of, or in
connection with any Related Writing; or (o) the holder of this Note shall, in
good faith, believe that the prospect of payment or performance of any
obligation evidenced by this Note is impaired.
5. Effects of Default. If any Event of Default (other than the commencement of
any Proceeding with respect to Borrower) shall occur, then, and in each such
case, notwithstanding any provision or inference to the contrary, Bank shall
have the right in its discretion, by giving written notice to Xxxxxxxx, to
declare this Note to be due, whereupon the entire unpaid principal balance of
this Note (if not already due) shall immediately become due and payable in
full. If any Proceeding shall be commenced with respect to Borrower, then,
notwithstanding any provision or inference to the contrary, automatically,
without presentment, protest, or notice of dishonor, all of which are waived by
all makers and all indorsers of this Note, now or hereafter existing, the
entire unpaid principal balance of this Note (if not already due) shall
immediately become due and payable in full.
6. Late Charges. If any principal of or interest on this Note is not paid within
ten (10) days after its due date, then, and in each such case, Bank shall have
the right to assess a late charge, payable by Borrower on demand, in an amount
equal to the greater of twenty dollars ($20.00) or five percent (5%) of the
amount not timely paid.
7. No Setoff. Borrower hereby waives any and all now existing or hereafter
arising rights to recoup or offset any obligation of Borrower under or in
connection with this Note or any Related Writing against any claim or right of
Borrower against Bank.
8. Indemnity, Administration and Enforcement. Borrower will reimburse Bank, on
Bank's demand from time to time, for any and all fees, costs, and expenses
(including, without limitation, the fees and disbursements of legal counsel)
incurred by Bank in administering this Note or in protecting, enforcing, or
attempting to protect or enforce its rights under this Note. If any amount
(other than any principal of this Note and any interest and late charges) owing
under this Note is not paid when due, then, and in each such case, Borrower
shall pay, on Bank's demand, interest on that amount from the due date thereof
until paid in full at a fluctuating rate equal to four percent (4%) per annum
plus the Prime Rate.
9. Waivers; Remedies; Application of Payments. Bank may from time to time in
its discretion grant waivers and consents in respect of this Note or any other
Related Writing or assent to amendments thereof, but no such
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waiver, consent, or amendment shall be binding upon Bank unless set forth in a
writing (which writing shall be narrowly construed) signed by Bank. No course
of dealing in respect of, nor any omission or delay in the exercise of, any
right, power, or privilege by Bank shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any further or other exercise
thereof or of any other, as each such right, power, or privilege may be
exercised either independently or concurrently with others and as often and in
such order as Bank may deem expedient. Without limiting the generality of the
foregoing, neither Bank's acceptance of one or more late payments or charges
nor Bank's acceptance of interest on overdue amounts at the respective rates
applicable thereto shall constitute a waiver of any right of Bank. Each right,
power, or privilege specified or referred to in this Note is in addition to and
not in limitation of any other rights, powers, and privileges that Bank may
otherwise have or acquire by operation of law, by other contract, or otherwise.
Bank shall be entitled to equitable remedies with respect to each breach or
anticipatory repudiation of any provision of this Note, and Borrower hereby
waives any defense which might be asserted to bar any such equitable remedy.
Bank shall have the right to apply payments in respect of the indebtedness
evidenced by this Note with such allocation to the respective parts thereof and
the respective due dates thereof as Bank in its sole discretion may from time
to time deem advisable.
10. Other Provisions. The provisions of this Note shall bind Borrower and
Xxxxxxxx's successors and assigns and benefit Bank and its successors and
assigns, including each subsequent holder, if any, of this Note. Except for
Xxxxxxxx and Bank and their respective successors and assigns, there are no
intended beneficiaries of this Note or the loan evidenced by this Note. The
provisions of sections 6 through 13, both inclusive, shall survive the payment
in full of the principal of and interest on this Note. The captions to the
sections and subsections of this Note are inserted for convenience only and
shall be ignored in interpreting the provisions thereof. Each reference to a
section includes a reference to all subsections thereof (i.e., those having the
same character or characters to the left of the decimal point) except where the
context clearly does not so permit. If any provision in this Note shall be or
become illegal or unenforceable in any case, then that provision shall be
deemed modified in that case so as to be legal and enforceable to the maximum
extent permitted by law while most nearly preserving its original intent, and
in any case the illegality or unenforceability of that provision shall affect
neither that provision in any other case nor any other provision. All fees,
interest, and premiums for any given period shall accrue on the first day
thereof but not on the last day thereof (unless the last day is the first day)
and in each case shall be computed on the basis of a 360-day year and the actual
number of days in the period. In no event shall interest accrue at a higher
rate than the maximum rate, if any, permitted by law. Bank shall have the right
to furnish to its Affiliates, and to such other Persons as Bank shall deem
advisable for the conduct of its business, information concerning the business,
financial condition, and property of Borrower, the amount of the Bank Debt of
Borrower, and the terms, conditions, and other provisions applicable to the
respective parts thereof. This Note shall be governed by the law (excluding
conflict of laws rules) of the jurisdiction in which Bank's banking office is
located.
11. Integration. This Note and, to the extent consistent with this Note, the
other Related Writings, set forth the entire agreement of Borrower and Bank as
to the subject matter of this Note, and may not be contradicted by evidence of
any agreement or statement unless made in a writing (which writing shall be
narrowly construed) signed by Bank contemporaneously with or after the
execution and delivery of this Note. Without limiting the generality of the
foregoing, Borrower hereby acknowledges that Bank has not based, conditioned,
or offered to base or condition the credit hereby evidenced or any charges,
fees, interest rates, or premiums applicable thereto upon Borrower's agreement
to obtain any other credit, property, or service other than any loan, discount,
deposit, or trust service from Bank.
12. Notices and Other Communications. Each notice, demand, or other
communication, whether or not received, shall be deemed to have been given to
Borrower whenever Bank shall have mailed a writing to that effect by certified
or registered mail to Borrower at Borrower's mailing address (or any other
address of which
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Borrower shall have given Bank notice after the execution and delivery of this
Note); however, no other method of giving actual notice to Borrower is hereby
precluded. Borrower hereby irrevocably accepts Xxxxxxxx's appointment as each
Xxxxxxx's agent for the purpose of receiving any notice, demand, or other
communication to be given by Bank to each such Obligor pursuant to any
Related Writing. Bank shall be entitled to assume that any knowledge possessed
by any Obligor other than Xxxxxxxx is possessed by Borrower. Each communication
to be given to Bank shall be in writing unless this Note expressly permits that
communication to be made orally, and in any case shall be given to Xxxx
Xxxxxxxx, Senior Vice President at Bank's Corporate Banking Division, Suite
200E at Bank's banking office (or any other address of which Bank shall have
given notice to Borrower after the execution and delivery of this Note).
Borrower hereby assumes all risk arising out of or in connection with each oral
communication given by Xxxxxxxx and each communication given or attempted by
Borrower in contravention of this section. Bank shall be entitled to rely on
each communication believed in good faith by Bank to be genuine.
13. Jurisdiction and Venue; Waiver of Jury Trial. Any action, claim,
counterclaim, crossclaim, proceeding, or suit, whether at law or in equity,
whether sounding in tort, contract, or otherwise at any time arising under or
in connection with this Note or any other Related Writing, the administration,
enforcement, or negotiation of this Note or any other Related Writing or the
performance of any obligation in respect of this Note or any other Related
Writing (each such action, claim, counterclaim, crossclaim, proceeding, or
suit, an "Action") may be brought in any federal or state court located in the
city in which Bank's banking office is located. Borrower hereby unconditionally
submits to the jurisdiction of any such court with respect to each such Action
and hereby waives any objection Borrower may now or hereafter have to the venue
of any such Action brought in any such court. BORROWER HEREBY, AND EACH HOLDER
OF THIS NOTE, BY TAKING POSSESSION THEREOF, KNOWINGLY AND VOLUNTARILY WAIVES
JURY TRIAL IN RESPECT OF ANY ACTION.
"BORROWER"
WABASH NATIONAL FINANCE CORPORATION
By: Xxxxxxx Xxxxxxxx
________________________________
Xxxxxxx Xxxxxxxx
Chief Executive Officer
