Exhibit 10.45
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OBSIDIAN LEASING COMPANY INC XXXXX COUNTY BANK & TRUST CO. KJW / GPG
XXXXXXX X XXXXX PRESIDENT 000 X XXXX XX Loan Number 449
000 XXXXXXXXX XXXX XX XXX 000
XXXXXX XX 00000 XXXXX XX 00000 Date September 24, 200
Maturity Date: September 24, 200
Loan Amount: $2,331,924
BORROWER'S NAME AND ADDRESS LENDER'S NAME AND ADDRESS Renewal Of:_____________________
"I" Includes each borrower above, "You" means the
jointly and severally.
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For value received, I promise to pay to you, or your order, at your address
listed above the PRINCIPAL sum of TWO MILLION THREE HUNDRED THIRTY-ONE THOUSAND
NINE HUNDRED TWENTY-FOUR AND 18/100 Dollars $2,331,924.18.
|X| Single Advance: I will receive all of the principal sum of 09/24/2002. No
additional advances are contemplated under this note.
|X| Multiple Advance: The principal sum shown above is the maximum amount of
principal I can borrow under this note. On N/A I will receive the amount of
$ N/A and the future principal advances are contemplated.
Conditions: The conditions for future advances are __________________
[ ] Open End Credit: You and I agree that I may borrow up to the maximum
principal sum more than one time. This feature is subject to all to __
conditions and expires on N/A .
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[ ] Closed End Credit: You and I agree that I may borrow (subject to all
other conditions) up to the maximum principal sum only one time.
INTEREST: I agree to pay interest on the outstanding principal balance from
9/24/02 at the rate of 7.500 per year until THE NEXT RATE CHANGE DATE.
|X| Variable Rate: This rate may then change as stated below.
|X| Index Rate: the future rate will be 2.750% ABOVE the following index
rate: WALL STREET PRIME.
|X| No Index: The future rate will not be subject to any internal or
external index. It will be entirely in your control.
|X| Frequency and Timing: The rate on this note may change as often as
DAILY . A change in the interest rate will take effect ON THE SAME DAY
.
[ ] Limitation: during the term of this loan, the applicable annual
interest rate will not be more than N/A % or less than N/A %. The rate
may not change more than % each DAY.
Effect of Variable Rate: A change in the interest rate will have the
following effect on the payments:
[ ] The amount of each schedules payment will change.
|X| The amount of the final payment will change.
[ ]
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ACCRUAL METHOD: Interest will be calculated on a 360/ACTUAL basis.
POST MATURITY RATE: I agree to pay interest on the unpaid balance of this note
owing after maturity, and until paid in full, as stated below:
|X| on the same fixed or variable rate basis in effect before maturity (as
indicated above).
[ ] at a rate equal to ___________________________________
[ ] LATE CHARGE: If a payment is made more than days after it is due, I agree
to pay a late charge of _________________________
[ ] ADDITIONAL CHARGES: In addition to interest, I agree to pay the following
charges which [ ] are [ ] are not included in the principal amount above:
PAYMENTS: I agree to pay this note as follows:
[ ] Interest: I agree to pay accrued interest _____________________________
[ ] Principal: I agree to pay the principal _______________________________
|X| Installments: I agree to pay this note in 60 payments. The first payment
will be in the amount of $27,814.93 and will be due OCTOBER 24, 2002 . A
payment of $ 27,814.93 will be due MONTHLY thereafter. The final payment of
the entire unpaid balance of principal and interest will be due SEPTEMBER
24, 2007 .
PURPOSE: The purpose of this loan is TRANSFER OWNERSHIP FROM DW LEASING TO
OBSIDIAN LEASING & COMBINE 7 LNS
ADDITIONAL TERMS:
SECURITY:
2002 PREVOST BUS, VIN 0XXX0000000000000
2002 PREVOST BUS, VIN 0XXX0000000000000
0000 XXXXXXXX XXXXXXX, XXX 0XXXX00000X000000
2001 PREVOST BUS, VIN 0XXX00000X0000000
0000 XXXXXXX XXX, XXX 0XXX00000X0000000
0000 XXX XXX, XXX XX0XXXXX000000
1999 PREVOST BUS, VIN 0XXX00000X0000000
WARRANTIES AND REPRESENTATIONS - If this agreement includes accounts, I will not
settle any account for less than its full value without your written permission.
I will collect all accounts until you tell me otherwise. I will keep the
proceeds from all the accounts and any goods which are returned to me or which I
take back in trust for you. I will not mix them with any other property of mine.
I will deliver them to you at your request. If you ask me to pay you the full on
any returned items or items retaken by myself, I will do so. You may exercise my
rights with respect to obligations of any account debtors, or other persons
obligated on the Property, to pay or perform, and you may enforce any security
interest that secures such obligations.
If this agreement covers inventory, I will not dispose of it except in my
ordinary course of business at the faire market value for the Property, or at a
minimum price established between you and me.
If this agreement covers farm products I will provide you, at your request, a
written list of the buyers, commission merchants or selling agents to or through
whom I may sell my farm products. In addition to those parties named on this
written list, I authorize you to notify at your sole discretion any additional
parties regarding your security interest in my farm products. I remain subject
to all applicable penalties for selling my farm products in violation of my
agreement with you and the Food Security Act. In this paragraph the terms farm
products, buyers, commission merchants and selling agents have the meanings
given to them in the Federal Food Security Act of 1985.
If this agreement covers chattel paper or instruments, either as original
collateral or proceeds of the Property, I will note your interest on the face of
the chattel paper or instruments. REMEDIES - I will be in default on this
security agreement if I am in default on any note this agreement secures or if I
fail to keep any promise contained in the terms of this agreement. If I default,
you have all of the rights and remedies provided in the note and under the
Uniform Commercial Code. You may require me to make the secured property
available to you at a place which is reasonably convenient. You may take
possession of the secured property and sell it as provided by law. The proceeds
will be applied first to your expenses and then to the debt. I agree that 10
days written notice sent to my last known address by first class mail will be
reasonable notice under the Uniform Commercial Code. My current address is on
page 1.
PERFECTION OF SECUIRTY INTEREST - I authorize you to file a financing statement
covering the Property. I will comply with, facilitate, and otherwise assist you
in connection with obtaining possession of or control over the Property for
purposes of perfecting your security interest under the Uniform Commercial Code.
ADDITIONTIONAL TERMS OF THE NOTE
DEFINITIONS - As used on pages 1 and 2, "|X|" means the terms that apply to this
loan. "I," "me" or "my" means each Borrower who signs this note and each other
person or legal entity (including guarantors, endorsers, and sureties) who
agrees to pay this note (together referred to as "us"). "You" or "your" means
the Lender and its successors and assigns. APPLICABLE LAW - The law of the state
of Illinois will govern this agreement. Any term of this agreement which is
contrary to applicable law will not be effective, unless the law permits you and
me to agree to such a variation. If any provision of this agreement cannot be
enforced according to its terms, this fact will not affect the enforceability of
this remainder of this agreement. No modification of this agreement may be made
without your express written consent. Time is of the essence in this agreement.
PAYMENTS - Each payment I make on this note will first reduce the amount I owe
you for charges which are neither interest nor principal. The remainder of each
payment will then reduce accrued unpaid interest, and then unpaid principal. If
you and I agree to a different application of payments, we will describe our
agreement on this note. I may prepay a part of, or the entire balance of this
loan without penalty, unless we specify to the contrary on this note. Any
partial prepayment will not excuse or reduce any later scheduled payment until
this note is paid in full (unless when I make the prepayment, you and I agree in
writing to this contrary). INTEREST - Interest accrues on the principal
remaining unpaid from time to time, until paid in full. If I receive the
principal in more than one advance, each advance will start to earn interest
only when I receive the advance. The interest rate in effect on this note at any
given time will apply to the entire principal sum outstanding at that time.
Notwithstanding anything to the contrary, I do not agree to pay and you do not
intend to charge any rate of interest that is higher than the maximum rate of
interest you could charge under applicable law for the extension of credit that
is agreed to in this note (either before or after maturity). If any notice of
interest accrual is sent and is in error, we mutually agree to correct it, and
if you actually collect more interest than allowed by law and this agreement,
you agree to refund it to me.
INDEX RATE - The index will serve only as a device for setting the interest rate
on this note. You do not guarantee by selecting this index, or the margin, that
the interest rate on this note will be the same rate you charge on any other
loans or class of loans you make to me or other borrowers.
POST MATURITY RATE - For purposes of deciding when the "Post Maturity Rate"
(shown on page 1) applies, the term "maturity" means the date of the last
scheduled payment indicated on page 1 of this note or the date you accelerate
payment on the note, whichever is earlier.
SINGLE ADVANCE LOANS - If this is a single advance loan, you and I expect that
you will make only one advance of principal. However, you may add other amounts
to the principal if you make any payments described in the "PAMENTS BY LENDER"
paragraph on page 2. MULTIPLE ADVANCE LOANS - If this is a multiple advance
loan, you and I expect that you will make more than one advance of principal. If
this a closed end credit, repaying a part of the principal will not entitle me
to additional credit. SET-OFF- I agree that you may set off any amount due and
payable under this note against any right I have to receive money from you.
"Right to receive money from you" means:
(1) any deposit account balance I have with you;
(2) any money owed to me on an item presented to you or in possession for
collection or exchange; and
(3) any repurchase agreement or other nondeposit obligation.
"Any amount due and payable under this note" means the total amount of which you
are entitled to demand payment under the term of this note at the time you set
off. This total includes any balance the date for which you properly
accelerate under this note.
If my right to receive money from you is also owned by someone who has not
agreed to pay this note, your right of set-off will apply to the interest in the
obligation and to any other amounts I could withdrawal my sole request or
endorsement. Your right of set-off does not apply to an account or other
obligation where my rights are only as representative. It also does not apply to
any Individual Retirement Account or other tax-deferred retirement account.
You will not be liable for the dishonor of any check when the dishonor occurs
because you set off this debt against any of my accounts. I agree to hold you
harmless from any such claims arising as a result of your exercise of your right
to set-off. DEFAULT - I will be in default if any one or more of the following
occurs:
(1) I fail to make a payment on time or in the amount due; (2) I fail to keep
the Property insured, if required; (3) I fail to pay, or keep promise, on any
debt or agreement I have with you; (4) any other credit of mine attempts to
collect any debt I owe his through collection proceedings; (5) I die, am
declared incompetent, make an assignment the benefit of creditors, or become
insolvent (either because my liabilities exceed my assets or I am unable to pay
my debts as they become due; (6) I make any written statement or provide any
financial information that is untrue or inaccurate at the time it was proved;
(7) I do or fail to something which causes you to believe you will have
difficulty collecting the amount I owe you ; (8) any collateral securing this
note is used in a manner or for a purpose which threatens confiscation by a
legal authority; (9) I change my name or assume an additional name without ___
notifying you before making such a change; (10) I fail to plant, cultivate and
harvest crops in due season; (11) any loan proceeds are used for __ purpose that
will contribute to excessive erosion of highly erodible land __ to the
conversion of wetlands to produce an agricultural commodity, as further
explained in 7 C.F.R. Part 1940, Subpart G, Exhibit M. REMEDIES - If I am in
default on this note you have, but are not limited to, the following remedies:
(1) You may demand immediate payment of all I owe you under this note
(principal, accrued unpaid interest and other accrued unpaid charges).
(2) You may set off this debt against any right I have to the payment of money
from you, subject to the terms of the "Set-Off" paragraph.
(3) You may demand security, additional security, or additional to be
obligated to pay this note as a condition for not using other remedy.
(4) You may refuse to make advances to me or allow purchases of credit by me.
(5) You may use any remedy you have under the state or federal law.
(6) You may make use of any remedy given to you in any agreement securing this
note.
By selecting any one or more of these remedies you do not give up your right to
use later any other remedy. By waiving your right to declare an event to be a
default, you do not waive your right to consider later event a default if it
continues or happens again.
COLLECTION COSTS AND ATTORNEY'S FEES - I agree to pay all costs of collection,
replevin or any other or similar type of cost if I am in default. In addition,
if you hire an attorney to collect this note, I also agree to pay any fee you
incur with such attorney plus court costs (except where prohibited by law). To
the extent permitted by the United States Bankruptcy Code, I also agree to pay
the reasonable attorney's fees and costs you incur to collect this debt as
awarded by any court exercising jurisdiction under the Bankruptcy Code. WAIVER -
I give up my rights to require you to do certain things. I will not require you
to: (1) demand payment of amounts due (presentment); (2) obtain official
certification of nonpayment (protest); or (3) give notice that amounts due have
not been paid (notice of dishonor).
I waive any defenses I have based on suretyship or impairment of collateral.
OBLIGATIONS INDEPENDENT - I understand that I must pay this note even if someone
else has also agreed to pay it (by, for example, signing this form or a separate
guarantee or endorsement). You may xxx me alone, or anyone else who is obligated
on this note, or any number of us together, to collect this note. You may
without notice release any party to this agreement without releasing any other
party. If you give up any of your rights, with or without notice, it will not
affect my duty to pay this note. Any extension of new credit to any of us, or
renewal of this note by all or less than all of us will not release me from my
duty to pay it. (Of course, you are entitled to only one payment in full.) I
agree that you may at your option extend this note or the debt represented by
this note, or any portion of the note or debt, from time to time without limit
or notice and for any term without affecting my liability for payment of the
note. I will not assign my obligation under this agreement without your prior
written approval. FINANCIAL INFORMATION - I agree to provide you, upon request,
any financial statement or information you may deem necessary. I warrant that
the financial statements and information I provide to you are or will be
accurate, correct and complete. CONFESSION OF JUDGMENT - If agreed on page 2,
then in addition to your remedies listed herein, I authorize any attorney to
appear in any court of record having jurisdiction over this matter and to
confess judgment, without process, against me, in favor of you, for any unpaid
principal, accrued interest and accrued charges due on this agreement, together
with collection costs including reasonable attorney's fees.
SIGNATURES: I AGREE TO THE TERMS OF THIS NOTE (INCLUDING THOSE ON PAGES 1,2, AND
3. I have received a copy on today's date.
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OBSIDIAN LEASING COMPANY INC. XXXXXXX X XXXXX, PRESIDENT
SIGNATURE FOR LENDER: XXXXXX XXXXXXX ASST. V.P. AND LOAN OFFICER
