PROMISSORY NOTE
|
$12,000,000.00
|
November
20, 0000
|
|
Xxxxxxxxxxxx,
Xxxxxxx
|
1. Agreement
to Pay.
FOR
VALUE RECEIVED, XXXXXX
X. XXXXXXX (“Borrower”),
hereby promises to pay to the order of FIFTH
THIRD BANK (CENTRAL INDIANA),
its
successors and assigns (“Lender”),
the
principal sum of Twelve Million Dollars and Zero Cents ($12,000,000.00)
(“Loan”),
at
the place and in the manner hereinafter provided, together with interest thereon
at the rate or rates described below, and any and all other amounts which may
be
due and payable hereunder from time to time without relief from valuation or
appraisement laws.
2. Interest
Rate.
2.1 Interest
Prior to Default.
Interest shall accrue on the outstanding principal balance of this Note from
the
date hereof through November 20, 2009 (the “Maturity Date”) at an annual
interest rate equal to the LIBOR Rate (as hereinafter defined) plus two percent
(2%) (the “Loan Rate”).
2.2 LIBOR
Rate. The
term
“LIBOR Rate” means,
with respect to a loan, the rate per annum (rounded upwards, if necessary,
to
the next higher 1/16 of 1%) determined by the Lender and equal to the average
rate per annum at which deposits (denominated in United States dollars) in
an
amount similar to the principal amount of that loan and with a maturity one
month after the date of reference are offered to the Lender at 11:00 A.M. London
time (or as soon thereafter as practicable) on the date of reference by banking
institutions in the London, United Kingdom market, as such interest rate is
referenced and reported by the British Bankers Association in the Bridge
Financial Telerate system “Page 3750” report or, if the same is unavailable, any
other generally accepted authoritative source of such interest rate as the
Lender may reference from time to time, provided, that in the event the LIBOR
Rate is unavailable as a result of Lender’s good faith determination of such,
the LIBOR Rate shall be a fluctuating rate equal to the prime rate. The LIBOR
Rate shall be adjusted by the Lender, as necessary, at the end of each business
day during the term hereof. Lender shall not be required to notify Borrower
of
any adjustment in the LIBOR Rate; however, Borrower may request a quote of
the
prevailing LIBOR Rate on any business day.
2.3 Interest
After Default.
From
and after the Maturity date or upon the occurrence and during the continuance
of
an Event of Default, interest shall accrue on the balance of principal remaining
unpaid during any such period at an annual rate (“Default
Rate”)
equal
to three percent (3%) plus the Loan Rate; provided, however, in no event shall
the Default Rate exceed the maximum rate permitted by law. The interest accruing
under this paragraph shall be immediately due and payable by Borrower to the
holder of this Note upon demand and shall be additional indebtedness evidenced
by this Note.
1
2.4 Interest
Calculation.
Interest on this Note shall be calculated on the basis of a 360-day year and
the
actual number of days elapsed in any portion of a month in which interest is
due.
2.5 LIBOR
Availability.
If the
Lender determines in good faith (which determination shall be conclusive, absent
manifest error) prior to the commencement of any Interest Period (defined below)
that (i) the making or maintenance of any Loan would violate any applicable
law,
rule, regulation or directive, whether or not having the force of law, (ii)
United States dollar deposits in the principal amount, and for periods equal
to
the Interest Period for funding any Loan are not available in the London
Interbank Eurodollar market in the ordinary course of business, (iii) by reason
of circumstances affecting the London Interbank Eurodollar market, adequate
and
fair means do not exist for ascertaining the LIBOR Rate to be applicable to
the
relevant Loan, or (iv) the LIBOR Rate does not accurately reflect the cost
to
the Lender of a Loan, the Lender shall promptly notify Borrower thereof and,
so
long as the foregoing conditions continue, the Lender shall have no obligation
to make any additional advances on the Loan at the Loan Rate
thereafter.
2.6 LIBOR
Regulatory Change.
If,
after the date hereof, a regulatory change shall, in the reasonable
determination of the Lender, make it unlawful for the Lender to make or maintain
the Loan, then the Lender shall promptly notify Borrower and none of the Loan
may be advanced thereafter. In addition, at Borrower’s option, the Loan shall be
immediately (i) converted the Loan Rate to an interest rate based on the prime
rate on the last business day of the then existing Interest Period or on such
earlier date as required by law, or (ii) due and payable on the last business
day of the then existing Interest Period or on such earlier date as required
by
law, all without further demand, presentment, protest or notice of any kind,
all
of which are hereby waived by Borrower.
3. Payment
Terms.
3.1 Principal
and Interest.
Payments of principal and interest due under this Note, if not sooner declared
to be due in accordance with the provisions hereof, shall be made as
follows:
(a) Commencing
on December 20, 2006 and on the twentieth day of each calendar month thereafter,
accrued interest shall be due and payable.
(b) Commencing
on December 20, 2008 and on the twentieth day of each calendar month thereafter,
principal payments in the amount of One Hundred Forty-Two Thousand Eight Hundred
Fifty-Seven and 14/100 Dollars ($142,857.14) shall be due and
payable.
(c) The
unpaid principal balance of this Note, if not sooner paid or declared to be
due
in accordance with the terms hereof, together with all accrued and unpaid
interest thereon and any other amounts due and payable hereunder or under any
other Loan Document (as hereinafter defined), shall be due and payable in full
at the Maturity Date.
2
3.2 Application
of Payments.
Prior
to the occurrence of an Event of Default, all payments and prepayments on
account of the indebtedness evidenced by this Note shall be applied as follows:
(a) first, to fees, expenses, costs and other similar amounts then due and
payable to Lender, including, without limitation any prepayment premium, exit
fee or late charges due hereunder, (b) second, to accrued and unpaid
interest on the principal balance of this Note, (c) third, to the payment
of principal due in the month in which the payment or prepayment is made,
(d) fourth, to any escrows, impounds or other amounts which may then be due
and payable under the Loan Documents, (e) fifth, to any other amounts then
due Lender hereunder or under any of the Loan Documents, and (f) last, to
the unpaid principal balance of this Note. Any prepayment on account of the
indebtedness evidenced by this Note shall not extend or postpone the due date
or
reduce the amount of any subsequent payment of interest due hereunder. After
an
Event of Default has occurred and is continuing, payments may be applied by
Lender to amounts owed hereunder and under the Loan Documents in such order
as
Lender shall determine, in its sole discretion.
3.3 Method
of Payments.
All
payments of principal and interest hereunder shall be paid by automatic debit,
wire transfer, check or in coin or currency which, at the time or times of
payment, is the legal tender for public and private debts in the United States
of America and shall be made at such place as Lender or the legal holder or
holders of this Note may from time to time appoint in the payment invoice or
otherwise in writing, and in the absence of such appointment, then at the
offices of Lender at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx,
Xxxxxxx 00000. Payment made by check shall be deemed paid on the date Lender
receives such check; provided, however, that if such check is subsequently
returned to Lender unpaid due to insufficient funds or otherwise, the payment
shall not be deemed to have been made and shall continue to bear interest until
collected. Notwithstanding the foregoing, the final payment due under this
Note
must be made by wire transfer or other final funds. If requested by Borrower,
interest, principal payments and any fees and expenses owed Lender from time
to
time will be deducted by Lender automatically on the due date from Borrower’s
account with Lender, as designated in writing by Borrower. Borrower will
maintain sufficient funds in the account on the dates Lender enters debits
authorized by this Note. If there are insufficient funds in the account on
the
date Lender enters any debit authorized by this Note, the debit will be
reversed. Borrower may terminate this direct debit arrangement at any time
by
sending written notice to Lender at the address specified herein for
notices.
3.4 Late
Charge.
If any
payment of interest or principal due hereunder is not made within ten days
after
such payment is due in accordance with the terms hereof, then, in addition
to
the payment of the amount so due, Borrower shall pay to Lender a “late charge”
of the greater of: (i) five cents for each whole dollar so overdue or (ii)
Twenty-Five Dollars ($25.00) to defray part of the cost of collection and
handling such late payment. Borrower agrees that the damages to be sustained
by
the holder hereof for the detriment caused by any late payment are extremely
difficult and impractical to ascertain, and that the amount of five cents for
each one dollar due is a reasonable estimate of such damages, does not
constitute interest, and is not a penalty.
3
3.5 Prepayment.
If, for
any reason, the Loan is paid prior to the last business day of any Interest
Period, whether voluntary, involuntary, by reason of acceleration or otherwise,
each such prepayment of the Loan will be accompanied by the amount of accrued
interest on the amount prepaid and any and all reasonable costs, expenses,
penalties and charges incurred by the Lender as a result of the early
termination or breakage of the Loan on a date other than the last business
day
of the applicable Interest Period, plus the amount, if any, by which (i) the
additional interest which would have been payable during the Interest Period
on
the Loan prepaid had it not been prepaid, exceeds (ii) the interest which would
have been recoverable by the Lender by placing the amount prepaid on deposit
in
the domestic certificate of deposit market, the eurodollar deposit market,
or
other appropriate money market selected by the Lender, for a period starting
on
the date on which it was prepaid and ending on the last day of the Interest
Period for the Loan. The amount of any such loss or expense payable by Borrower
to the Lender under this section shall be determined in the Lender’s reasonable
discretion based upon the assumption that the Lender funded its loan commitment
for the Loan in the London Interbank Eurodollar market and using any reasonable
attribution or averaging methods which the Lender deems appropriate and
practical, provided, however, that the Lender is not obligated to accept a
deposit in the London Interbank Eurodollar market in order to charge interest
on
the Loan at the Loan Rate.
3.6 Mandatory
Prepayment.
On any
date on which Borrower or Guarantor transfers the Purchased Stock (defined
below), a principal payment, in addition to any regularly scheduled principal
payment, shall be due and payable in the amount equal to the greater of (i)
the
proceeds of such sale, or (ii) the fair market value of the Purchased Stock
so
transferred, together with all accrued and unpaid interest due to such date.
Prepayments under this Section 3.6 shall be applied to payments in the inverse
order of when due.
3.7 Interest
Period.
The
phrase “Interest Period” shall mean the designated periods for the Loan, which
shall be thirty (30) days (collectively, the “Interest Periods” and,
individually, “Interest Period”); provided, however, if deposits in United
States dollars for such Interest Period are not then being accepted by first
class banks in the London interbank market, such Interest Period may, at the
option of Borrower, be the next shorter or longer Interest Period.
4. Purpose
of Loan.Borrower
agrees to use the Loan to (i) purchase shares of the common stock of Fortune
Industries, Inc. (“Fortune”), and (ii) make a direct loan to Guarantor (defined
below) so that he may purchase shares of the common stock of Fortune
(collectively, the “Purchased Stock”). Borrower agrees to provide Lender with
evidence of such loan to Guarantor and such purchase by Borrower and/or
Guarantor promptly upon the occurrence of the same. Borrower further
acknowledges and agrees that Lender is authorized to advance the Loan hereunder
directly to Guarantor.
4
5. Conditions
to Loan.
Notwithstanding any other provision of this Note, the Lender shall not be
required to disburse or make all or any portion of the Loan if Borrower shall
have failed to execute and deliver to the Lender any of the following Loan
Documents (collectively, the “Loan Documents”), all of which must be
satisfactory to the Lender and the Lender’s counsel in form, substance and
execution:
5.1 Note.
This
Note
duly executed by Borrower.
5.2 Guaranty.
That
certain Guaranty, of even date herewith, duly executed by Xxxx X. Xxxxxxx
(“Guarantor”).
5.3 Account
Pledge Agreement.
That
certain Account Pledge Agreement, of even date herewith, duly executed by the
Borrower.
5.4 Account
Control Agreement. That
certain Account Control Agreement, of even date herewith, duly executed by
Borrower and Wachovia Securities.
5.5 Additional
Documents. Such
other certificates, financial statements, schedules, resolutions, opinions
of
counsel, notes and other documents which are provided for hereunder or which
the
Lender shall require.
6. Events
of Default.
The
occurrence of any one or more of the following events shall constitute an
“Event
of Default”
under
this Note:
6.1 Nonpayment
of Obligations.
Any
amount due and owing on this Note or any of obligation of Borrower to Lender
(collectively, the “Obligations”), whether by its terms or as otherwise provided
herein, is not paid within ten (10) days after the date when such payment is
due.
6.2 Misrepresentation.
Any
oral or written warranty, representation, certificate or statement in this
Note
or any other agreement with the Lender shall be false when made or at any
time.
6.3 Nonperformance.
Any
failure by Borrower to perform or default in the performance of any covenant,
condition or agreement contained in this Note, any other Loan Document or any
other agreement with Lender.
6.4 Assignment
for Creditors.
Either
Borrower or Guarantor makes an assignment for the benefit of creditors, fails
to
pay, or admits in writing his inability to pay his debts as they mature; or
if a
trustee of any substantial part of the assets of either Borrower or Guarantor
is
applied for or appointed.
6.5 Bankruptcy.
Any
proceeding involving either Borrower or Guarantor, is commenced by or against
Borrower or Guarantor under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law or statute
of
the federal government or any state government.
5
6.6 Judgments.
The
entry of any material judgment, decree, levy, attachment, garnishment or other
process, or the filing of any Lien against either Borrower or Guarantor which
is
not fully covered by insurance.
7. Remedies.
At the
election of the holder hereof, and without notice, the principal balance
remaining unpaid under this Note, and all unpaid interest accrued thereon and
any other amounts due hereunder, shall be and become immediately due and payable
in full upon the occur-rence of any Event of Default. Failure to exercise this
option shall not constitute a waiver of the right to exercise same in the event
of any subsequent Event of Default. No holder hereof shall, by any act of
omission or commission, be deemed to waive any of its rights, remedies or powers
hereunder or otherwise unless such waiver is in writing and signed by the holder
hereof, and then only to the extent specifically set forth therein. The rights,
remedies and powers of the holder hereof, as provided in this Note, are
cumulative and concurrent, and may be pursued singly, successively or together
against Borrower, any guarantor thereof, the security given at any time to
secure the repayment hereof, all at the sole discretion of the holder hereof.
If
any suit or action is instituted or attorneys are employed to collect this
Note
or any part hereof, Borrower promises and agrees to pay all costs of collection,
including reasonable attorneys’ fees and court costs.
8. Waivers.
Borrower and all others who now or may at any time become liable for all or
any
part of the obligations evidenced hereby, expressly agree hereby to be jointly
and severally bound, and jointly and severally: (i) waive and renounce any
and all homestead, redemption and exemption rights and the benefit of all
valuation and appraisement privileges against the indebtedness evidenced by
this
Note or by any extension or renewal hereof; (ii) waive presentment and
demand for payment, notices of nonpayment and of dishonor, protest of dishonor,
and notice of protest; (iii) except as expressly provided in the Loan
Documents, waive any and all notices in connection with the delivery and
acceptance hereof and all other notices in connection with the performance,
default, or enforcement of the payment hereof or hereunder; (iv) waive any
and all lack of diligence and delays in the enforcement of the payment hereof;
(v) agree that the liability of Borrower, guarantor, endorser or obligor
shall be unconditional and without regard to the liability of any other person
or entity for the payment hereof, and shall not in any manner be affected by
any
indulgence or forbearance granted or consented to by Lender to any of them
with
respect hereto; (vi) consent to any and all extensions of time, renewals,
waivers, or modifications that may be granted by Lender with respect to the
payment or other provisions hereof, and to the release of any security at any
time given for the payment hereof, or any part thereof, with or without
substitution, and to the release of any person or entity liable for the payment
hereof; and (vii) consent to the addition of any and all other makers,
endorsers, guarantors, and other obligors for the payment hereof, and to the
acceptance of any and all other security for the payment hereof, and agree
that
the addition of any such makers, endorsers, guarantors or other obligors, or
security shall not affect the liability of Borrower, any guarantor and all
others now liable for all or any part of the obligations evidenced hereby.
This
provision is a material inducement for Lender making the Loan to
Borrower.
9. Representations
and Warranties.
Any
representation or warranty of the Borrower contained herein or in any Loan
Document shall be untrue or incorrect as of the date of any Loan as though
made
on such date, except to the extent such representation or warranty expressly
relates to an earlier date.
6
10.
Negative
Covenants.
10.1 Change
of Legal Status.
The
Borrower shall not change his name or state of residence without sixty (60)
days
prior written notice to the Lender.
11.
Affirmative
Covenants.
11.1
Compliance
with Bank Regulatory Requirements.
Upon
demand by the Lender, the Borrower shall reimburse the Lender for the Lender’s
additional costs and/or reductions in the amount of principal or interest
received or receivable by the Lender if at any time after the date of this
Note
any law, treaty or regulation or any change in any law, treaty or regulation
or
the interpretation thereof by any governmental authority charged with the
administration thereof or any central bank or other fiscal, monetary or other
authority having jurisdiction over the Lender or the Loan, whether or not having
the force of law, shall impose, modify or deem applicable any reserve (except
reserve requirements taken into account in calculating the Loan Rate) and/or
special deposit requirement against or in respect of assets held by or deposits
in or for the account of the Loan by the Lender or impose on the Lender any
other condition with respect to this Note or the Loan, the result of which
is to
either increase the cost to the Lender of making or maintaining the Loan or
to
reduce the amount of principal or interest received or receivable by the Lender
with respect to such Loan. Said additional costs and/or reductions will be
those
which directly result from the imposition of such requirement or condition
on
the making or maintaining of such Loan. The Loan shall be deemed to be match
funded for the purposes of the Lender’s determination in the previous sentence.
Notwithstanding the foregoing, the Borrower shall not be required to pay any
such additional costs which could be avoided by the Lender with the exercise
of
reasonable conduct and diligence.
11.2
Maintain
Insurance.
The
Borrower shall at all times insure and keep insured in insurance companies
acceptable to the Lender, all insurable property owned by him which is of a
character usually insured by parties similarly situated and operating like
properties, against loss or damage from fire and such other hazards or risks
as
are customarily insured against by parties similarly situated and operating
like
properties.
11.3
Tax
Liabilities.
Borrower shall at all times pay and discharge all property and other taxes,
assessments and governmental charges upon, and all claims (including claims
for
labor, materials and supplies) against Borrower or any of its
properties.
11.4
Financial
Statements.
Borrower shall furnish to the Lender or its authorized representatives such
information regarding the business affairs, operations and financial condition
of the Borrower, including, but not limited to:
(a) as
soon
as available, and in any event, within one hundred twenty (120) days following
the end of each calendar year, a copy of the personal financial statements,
in
form and substance acceptable to the Lender, of Borrower; and
7
(b) as
soon
as available, and in any event, within thirty (30) days following the end of
each calendar month, a copy of the brokerage statements for Borrower’s for (i)
his accounts with Wachovia Securities, Account Number 00000000, and (ii) his
account with Wachovia Securities, Account Number 1090-8023. No
change
with respect to such accounting principles shall be made by the Borrower without
giving prior notification to the Lender. The Borrower represents and warrants
to
the Lender that the financial statements delivered to the Lender at or prior
to
the execution and delivery of this Note and to be delivered at all times
thereafter accurately reflect and will accurately reflect the financial
condition of the Borrower. The Lender shall have the right at all times during
business hours to inspect the books and records of the Borrower and make
extracts therefrom. The Borrower agrees to advise the Lender promptly of any
material adverse change in the financial condition or any other status of the
Borrower.
11.5
Other
Reports.
The
Borrower shall, within such period of time as the Lender may specify, deliver
to
the Lender such other schedules and reports as the Lender may reasonably
require.
11.6
Notice
of Proceedings.
The
Borrower shall, promptly after knowledge thereof shall have come to the
attention of the Borrower, give written notice to the Lender of all threatened
or pending actions, suits, and proceedings before any court or governmental
department, commission, board or other administrative agency which may have
a
material effect on the business or property of the Borrower.
11.7 Notice
of Default.
The
Borrower shall, promptly after the commencement thereof, give notice to the
Lender in writing of the occurrence of an Event of Default or of any event
which, with the lapse of time, the giving of notice or both, would constitute
an
Event of Default hereunder.
11.8
Liquidity
of Borrower.
Borrower shall hold a minimum of Forty Million Dollars ($40,000,000.00) in
unpledged and unencumbered stock in Xxx Xxxxx & Company and/or Belterra
Capital Fund LLC, to be tested monthly.
11.9
Commitment
Fee.
Contemporaneous with execution of this Note, Borrower shall pay Lender a
commitment fee of Fifty Thousand Dollars ($50,000.00). In addition, Borrower
agrees to reimburse Lender for all fees and costs incurred by Lender in
connection with the Loan, including reasonable attorney fees and costs.
12.
Indemnification.
Borrower agrees to defend (with counsel satisfactory to the Lender), protect,
indemnify and hold harmless each Indemnified Party from and against any and
all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses and distributions of any kind or nature (including,
without limitation, the disbursements and the reasonable fees of counsel for
each Indemnified Party thereto, which shall also include, without limitation,
attorneys’ fees and time charges of attorneys who may be employees of the
Lender, any parent corporation or affiliated corporation of the Lender), which
may be imposed on, incurred by, or asserted against, any Indemnified Party
(whether direct, indirect or consequential and whether based on any federal,
state or local laws or regulations, including, without limitation, securities,
environmental laws and commercial laws and regulations, under common law or
in
equity, or based on contract or otherwise) in any manner relating to or arising
out of this Note or any of the Loan Documents, or any act, event or transaction
related or attendant thereto, the preparation, execution and delivery of this
Note and the Loan Documents, including, but not limited to, the making or
issuance and management of the Loan, the use or intended use of the proceeds
of
the Loan, the enforcement of the Lender’s rights and remedies under this Note,
the Loan Documents, any other instruments and documents delivered hereunder,
or
under any other agreement between Borrower and the Lender; provided, however,
that Borrower shall not have any obligations hereunder to any Indemnified Party
with respect to matters caused by or resulting from the willful misconduct
or
gross negligence of such Indemnified Party. To the extent that the undertaking
to indemnify set forth in the preceding sentence may be unenforceable because
it
violates any law or public policy, Borrower shall satisfy such undertaking
to
the maximum extent permitted by applicable law. Any liability, obligation,
loss,
damage, penalty, cost or expense covered by this indemnity shall be paid to
each
Indemnified Party on demand, and, failing prompt payment, shall, together with
interest thereon at the Default Rate from the date incurred by each Indemnified
Party until paid by Borrower, be added to the Obligations of Borrower and be
secured by the Collateral. The provisions of this Section 12 shall survive
the
satisfaction and payment of the other Obligations and the termination of this
Note. For purposes of this Note, the phrase “Indemnified Party” and “Indemnified
Parties” shall mean, respectively, each of the Lender and any parent
corporations, affiliated corporations or subsidiaries of the Lender, and each
of
their respective officers, directors, employees, attorneys and agents, and
all
of such parties and entities.
8
13.
LIBOR
Indemnity.
If any
regulatory change, or compliance by the Lender or any person controlling the
Lender with any request or directive of any governmental authority, central
bank
or comparable agency (whether or not having the force of law) shall (a) impose,
modify or deem applicable any assessment, reserve, special deposit or similar
requirement against assets held by, or deposits in or for the account of or
loans by, or any other acquisition of funds or disbursements by, the Lender;
(b)
subject the Lender or any Loan to any tax, duty, charge, stamp tax or fee or
change the basis of taxation of payments to the Lender of principal or interest
due from Borrower to the Lender hereunder (other than a change in the taxation
of the overall net income of the Lender); or (c) impose on the Lender any other
condition regarding the Loan or the Lender’s funding thereof, and the Lender
shall reasonably determine that the result of the foregoing is to increase
the
cost to, or to impose a cost on, the Lender or such controlling Person of making
or maintaining the Loan or to reduce the amount of principal or interest
received by the Lender hereunder, then Borrower shall pay to the Lender or
such
controlling Person, on demand, such additional amounts as the Lender shall,
from
time to time, determine are sufficient to compensate and indemnify the Lender
for such increased cost or reduced amount.
14. Other
General Agreements.
14.1 The
Loan
is a business loan and is not being made for personal, family or household
purposes. Borrower agrees that the Loan evidenced by this Note is an exempted
transaction under the Truth In Lending Act, 15 U.S.C., Section 1601, et
seq.
9
14.2 No
portion of the proceeds of the Loan shall be used by Borrower, or any affiliates
of Borrower, either directly or indirectly, for the purpose of purchasing or
carrying any margin stock, within the meaning of Regulation U as adopted by
the
Board of Governors of the Federal Reserve System.
14.3 Time
is
of the essence hereof.
14.4 This
Note
is governed and controlled as to validity, enforcement, interpretation,
construction, effect and in all other respects by the statutes, laws and
decisions of the State of Indiana. This Note may not be changed or amended
orally but only by an instrument in writing signed by the party against whom
enforcement of the change or amendment is sought.
14.5 Lender
shall not be construed for any purpose to be a partner, joint venturer, agent
or
associate of Borrower or of any lessee, operator, concessionaire or licensee
of
Borrower in the conduct of its business, and by the execution of this Note,
Borrower agrees to indemnify, defend, and hold Lender harmless from and against
any and all damages, costs, expenses and liability that may be incurred by
Lender as a result of a claim that Lender is such partner, joint venturer,
agent
or associate.
14.6 This
Note
has been made and delivered at Indianapolis, Indiana and all funds disbursed
to
or for the benefit of Borrower will be disbursed in Indianapolis,
Indiana.
14.7 The
obligations and liabilities of Borrower under this Note shall be binding upon
and enforceable against Borrower and its successors and assigns. This Note
shall
inure to the benefit of and may be enforced by Lender and its successors and
assigns.
14.8 If
any
provision of this Note is deemed to be invalid by reason of the operation of
law, or by reason of the interpretation placed thereon by any administrative
agency or any court, Borrower and Lender shall negotiate an equitable adjustment
in the provisions of the same in order to effect, to the maximum extent
permitted by law, the purpose of this and the validity and enforceability of
the
remaining provisions, or portions or applications thereof, shall not be affected
thereby and shall remain in full force and effect.
14.9 If
the
interest provisions herein or in any of the Loan Documents shall result, at
any
time during the Loan, in an effective rate of interest which, for any month,
exceeds the limit of usury or other laws applicable to the Loan, all sums in
excess of those lawfully collectible as interest of the period in question
shall, without further agreement or notice between or by any party hereto,
be
applied upon principal immediately upon receipt of such monies by Lender, with
the same force and effect as though the payer has specifically designated such
extra sums to be so applied to principal and Lender had agreed to accept such
extra payment(s) as a premium-free prepayment. Notwithstanding the foregoing,
however, Lender may at any time and from time to time elect by notice in writing
to Borrower to reduce or limit the collection to such sums which, when added
to
the said first-stated interest, shall not result in any payments toward
principal in accordance with the requirements of the preceding sentence. In
no
event shall any agreed to or actual exaction as consideration for this Loan
transcend the limits imposed or provided by the law applicable to this
transaction or the makers hereof in Indiana for the use or detention of money
or
for forbearance in seeking its collection.
10
14.10
Lender
may at any time assign its rights in this Note. In addition, Lender may at
any
time sell one or more participations in the Note. Borrower may not assign its
interest in this Note, or any other agreement with Lender or any portion
thereof, either voluntarily or by operation of law, without the prior written
consent of Lender.
14.11
All
notices, communications and waivers under this Note shall be in writing and
shall be (i) delivered in person or (ii) mailed, postage prepaid, either by
registered or certified mail, return receipt requested, or (iii) by overnight
express carrier, addressed in each case as follows:
|
To
Lender:
|
Fifth
Third Bank
|
|
000
X. Xxxxxxxx Xxxxxx, Xxxxx 0000
|
|
Xxxxxxxxxxxx,
XX 00000
|
|
Attn:
Xxxxxx Xxxxxx
|
|
With
copy to:
|
H.
Xxxxxxx Xxxxxx
|
|
Bose
XxXxxxxx & Xxxxx LLP
|
|
000
Xxxxx Xxxxxxxxxxxx, Xxxxx 0000
|
|
Xxxxxxxxxxxx,
XX 00000
|
|
To
Borrower:
|
Xxxxxx
X. Xxxxxxx
|
|
0000
Xxxxxxxxx Xxxxx
|
|
Xxxxxxxxxxxx,
XX 00000
|
or
to any
other address as to any of the parties hereto, as such party shall designate
in
a written notice to the other party hereto. All notices sent pursuant to the
terms of this Note shall be deemed received (i) if personally delivered, then
on
the date of delivery, (ii) if sent by overnight, express carrier, then on the
next federal banking day immediately following the day sent, or (iii) if sent
by
registered or certified mail, then on the earlier of the third federal banking
day following the day sent or when actually received.
15.
Consent
to Jurisdiction. TO INDUCE LENDER TO ACCEPT THIS NOTE, BORROWER IRREVOCABLY
AGREES THAT, SUBJECT TO LENDER’S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR
PROCEEDINGS IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE WILL BE LITIGATED
IN COURTS HAVING SITUS IN INDIANAPOLIS, INDIANA. BORROWER HEREBY CONSENTS AND
SUBMITS TO THE JURISDICTION OF ANY COURT LOCATED WITHIN INDIANAPOLIS, INDIANA
WAIVES PERSONAL SERVICE OF PROCESS UPON BORROWER, AND AGREES THAT ALL SUCH
SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL DIRECTED TO BORROWER AT THE
ADDRESS STATED IN HEREIN AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED
UPON
ACTUAL RECEIPT.
11
16.
Waiver
of Jury Trial. BORROWER AND LENDER (BY ACCEPTANCE OF THIS NOTE), HAVING BEEN
REPRESENTED BY COUNSEL, EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO
A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
(a) UNDER THIS NOTE OR ANY RELATED AGREEMENT OR UNDER ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION WITH THIS NOTE OR (b) ARISING FROM ANY BANKING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS NOTE, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
BORROWER AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST LENDER ON ANY THEORY
OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE
DAMAGES.
IN
WITNESS WHEREOF,
Borrower has executed and delivered this Note as of the day and year first
written above.
|
BORROWER:
|
|||
|
Xxxxxx
X. Xxxxxxx
|
|
STATE
OF INDIANA
|
)
|
|
|
|
)
SS:
|
|
|
COUNTY
OF ____________
|
)
|
Before
me, a Notary Public in and for said County and State, personally appeared Xxxxxx
X. Xxxxxxx, who, after having been duly sworn, acknowledged the execution of
the
foregoing Promissory Note for as his voluntary act and deed.
Witness
my hand and Notarial Seal this 20th
day of
November, 2006.
|
Notary
Public
|
|||
|
Printed
|
|
My
Commission Expires:
|
|
|
My
County of Residence:
|
|
12
