ADJUSTABLE RATE NOTE
Exhibit
10.15
$100,000.00 September
11, 2001
FOR VALUE RECEIVED, the undersigned,
KES, Inc., an Ohio corporation (“Maker”), having an address of 0000 Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx 00000, hereby promises to pay to the order of
XXXX XXXXX XXXXXXXXX, an individual (“Payee”), at his offices at 0000 Xxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, or such other place as the holder of this
Note may from time to time designate in writing, the principal sum of ONE
HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00), together with interest on the
unpaid principal balance from day to day remaining at the Applicable Interest
Rate (as hereinafter defined), as follows:
1. Definitions. As
used herein, the following terms shall have the respective meanings
indicated:
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(i)
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Prime
Rate. The term “Prime Rate” as used herein shall mean a
rate per annum equal to the base, prime or index commercial loan interest
rate established and published or announced as such from time to time by
Citibank, N.A., in New York, New York, or its successor (“Citibank”), and
is not necessarily the lowest interest rate charged by Citibank on
commercial loans. If Citibank should have more than one
established and published or announced base or prime commercial loan rate,
the “Base Rate” herein shall mean Citibank’s highest established and
published or announced base or prime commercial loan
rate. Without notice to Maker or any other party, Prime Rate
shall automatically fluctuate upward and downward as and in the amount by
which said base or prime commercial loan rate shall
fluctuate.
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(ii)
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Maximum
Rate. The term “Maximum Rate” as used herein shall mean
the maximum rate of interest permitted from time to time by applicable
law.
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(iii)
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Applicable Interest
Rate. The term “Applicable Interest Rate” as used herein
shall mean the rate, which shall from day to day be at the annual rate
equal to the lesser of the
following:
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(a)
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the
Maximum Rate; or
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(b)
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the
sum of one percent (1%) plus the Prime
Rate;
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calculated
on the basis of actual days over a year consisting of 365 days; provided,
however, if at any time a rate of interest specified in clause (b) above would
exceed the Maximum Rate, thereby causing the interest hereon to be limited to
the Maximum Rate, then any subsequent reduction in Prime Rate shall not reduce
the rate of interest hereon below the Maximum Rate until the total amount of
interest accrued hereon equals the amount of interest which would have accrued
hereon if the rate specified in clause (b) above had at all times been in
effect. Each change in the rate of interest charged hereunder shall
become effective on the effective date of each change in the Prime Rate or
Maximum Rate without notice to Maker.
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2.
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Payment. This
note is due and payable as follows:
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(i)
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Interest
on the principal sum of this Note is due and payable annually as it
accrues during the term hereof in annual installments commencing one year
from the date hereof and continuing on each annual anniversary date
thereafter. Notwithstanding, in the event Maker does not have
sufficient cash flow to make an interest payment under this paragraph
2(i), Maker shall have the right to defer such payment, with interest,
until such time as cash flow is available to make such payment, but not
later than three (3) years from the date hereof (the "Maturity
Date");
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(ii)
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All
unpaid and outstanding principal on this Note and all accrued and unpaid
interest on such principal amount shall be due and payable on the Maturity
Date; and
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(ii)
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The
Note may be prepaid in whole or in part at any time during the term
hereof.
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Any payment shall be applied first to
accrued interest due on the unpaid principal balance and the remainder of each
payment shall be applied to the reduction of unpaid principal.
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3. Default and
Remedies. At the option of the holder of this Note, the entire
principal balance and accrued interest owing hereon shall at once become due and
payable without notice or demand upon the occurrence at any time of any of the
following events:
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(i)
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Default
in the payment of any installment of principal or interest when
due;
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(ii)
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Default
in the performance of any of the covenants or provisions of, or the
occurrence of any default or event of default under, the Pledge Agreement
or any other deed of trust, mortgage, or other agreement securing this
Note or evidencing the indebtedness created hereby;
or
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(iii)
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The
bankruptcy or insolvency of, the assignment for the benefit of creditors
by, or the appointment of a receiver for any receiver for any property of
any party liable for the payment of this Note, whether as maker, endorser,
guarantor, surety, or otherwise; or
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With respect to the events described in
subparagraphs (ii) and (iii) above, the holder of this Note agrees to furnish
Maker ten (10) days prior written notice of the occurrence thereof before
declaring a default hereunder on account of same.
All past due installments of principal
and, if permitted by applicable law, of interest, shall bear interest at the
highest lawful rate permitted by applicable law, or if no highest lawful rate is
applicable hereto, then at the rate of eighteen percent (18%) per
annum. During the existence of any default hereunder, the entire
unpaid balance of principal shall bear interest at the highest rate permitted by
applicable law.
4. Attorney’s Fees and
Costs. If this Note or any installment due hereunder is not
paid when due, whether at maturity or by acceleration, or if it is collected
through a bankruptcy, probate, or other Court, whether before or after maturity,
the undersigned agrees to pay all costs of collection, including, but not
limited to, reasonable attorneys’ fees incurred by the holder
hereof.
5. Governing
Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of Oklahoma, except to the extent such
laws are preempted by federal laws, in which case, this Note shall be governed
by such federal laws, as applied in the State of Oklahoma. In the
event the enforceability or validity of any provision of this Note or of any
document evidencing or securing the indebtedness represented by this Note is
challenged or questioned, such provision shall be governed by, and shall be
construed in accordance with, whichever applicable federal or state law would
uphold or would enforce such challenged or questioned provision.
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6. Usury Savings
Clause. All agreements between Maker and the holder hereof
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 acceleration of the maturity hereof or otherwise, shall the amount
paid, or agreed to be paid, to the holder hereof for the use, forbearance, or
detention of the money to be loaned hereunder or otherwise or for the payment or
performance of any covenant or obligations contained herein or in any document
evidencing, securing or pertaining to the indebtedness evidenced hereby, exceed
the maximum amount permissible under applicable law. If from any
circumstances whatsoever, fulfillment of any provision hereof or other document
at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law, then, ipso facto, the obligation
to be fulfilled shall be reduced to the limit of such validity, and if from any
such circumstance the holder hereof should ever receive an amount deemed
interest by applicable law which shall exceed the highest lawful rate, such
amount which would be excessive interest shall be characterized as an expense,
rather than as interest, or be applied to the reduction of the principal amount
owing hereunder or on account of any other principal indebtedness of the
undersigned to the holder hereof, and not to the payment of interest or if such
excessive payment cannot be characterized as an expense, and exceeds the unpaid
balance of principal hereof and such other indebtedness, the excess shall be
refunded to Maker. All sums paid or agreed to be paid by the
undersigned for the use, forbearance or detention of the indebtedness of the
undersigned to the holder hereof shall, to the extent permitted by applicable
law, be amortized, prorated, allocated and spread throughout the full term of
such indebtedness until payment in full. The terms and provisions of
this paragraph shall control and supersede every other provision of all
agreements between the undersigned and holder hereof.
7. Waiver. Except
as expressly provided herein, the Maker and any sureties, guarantors and
endorsers of this Note jointly and severally waive demand, presentment, notice
of nonpayment, notice of dishonor, notice of default and opportunity to cure,
notice of intent to accelerate, notice of acceleration, diligence in collecting,
grace, notice and protest, and consent to all extensions without notice for any
period or periods of time and partial payments, before or after maturity,
without prejudice to the holder. The holder shall similarly have the
right to deal in any way, at any time, with one or more of the foregoing parties
without notice to any other party, and to grant any such party any extensions of
time for payment of any of said indebtedness, or to grant any other indulgences
or forbearances whatsoever, without notice to any other party and without in any
way affecting the personal liability of any party hereunder.
8. Notices. Any
notice or demand required hereunder shall be deemed to be delivered when
deposited in the United States mail, postage prepaid, certified mail, return
receipt requested, addressed to Maker or Payee, as the case may be, at the
address set out hereinbelow, or at such other address as such party may
hereafter deliver in accordance herewith. Any other method of
delivery of notice or demand shall be effective only when actually received by
the recipient thereof. If and when included within the term “Maker”
or “Payee” there are more than one person, all shall jointly arrange among
themselves for their joint execution and delivery of a notice to the other
specifying some person at some specific address for the receipt of all notices,
demands, payment or other documents. All persons included within the
terms “Maker” or “Payee” respectively, shall be bound by notices, demands,
payments and documents given in accordance with the provisions of this paragraph
to the same extent as if each had received such notice, demand, payment or
document.
9. Successors and
Assigns. This Note and all covenants, promises and agreements
contained herein shall be binding upon and shall inure to the benefit of Maker
and Payee, and their respective successors and assigns.
10. Joint and Several
Liability. Should this Note be signed or endorsed by more than
one person and/or entity, all of the obligations herein contained shall be
considered the joint and several obligations of each maker and endorser
hereof.
11. Termination. This
Note may not be terminated orally, but only by a discharge in writing by the
holder of this Note at the time such discharge is sought.
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EXECUTED IN Upper Marlboro, Maryland,
as of the day and year first above written.
MAKER:
KES,
INC., an Ohio corporation
By: /s/ Xxxxxx X.
Xxxxxx
Xxxxxx X. Xxxxxx,
President
ADDRESSES FOR
NOTICES
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PAYEE:
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MAKER:
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Xxxx
Xxxxx Xxxxxxxxx
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KES,
Inc.
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0000
X. Xxxxx Xxxxxxx Xxxxx
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c/o
Landmark National
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Edmond,
Oklahoma 73003
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0000
Xxxxx Xxxxxxx
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Upper
Marlboro, MD 20774
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