EXHIBIT 10.22
RENEWED REVOLVING CREDIT NOTE
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("Note")
COMMONWEALTH PREMIUM FINANCE CORPORATION
a Kentucky corporation
0000 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
"BORROWER"
$2,000,000.00
DATED EFFECTIVE AS OF June 18, 1998
Executed at Lexington, Kentucky
1. FOR VALUE RECEIVED, COMMONWEALTH PREMIUM FINANCE CORPORATION
("Borrower"), promises to pay to the order of BANK ONE, KENTUCKY, NA, a
national banking association (the "Bank"), the principal sum of Two
Million Dollars ($2,000,000.00) or so much thereof as may be advanced by
Bank and outstanding from time to time under this Note pursuant to the
Loan Agreement between Borrower and Bank dated as of October 18, 1996
(the "Loan Agreement"), as amended by the First Amendment to Loan
Agreement dated December 17, 1996, the Second Amendment to Loan
Agreement dated as of August 4, 1997, and the Third Amendment to Loan
Agreement dated July 23, 1998 (the "Amendments") and to pay interest
from the date hereof on such principal amount from time to time
outstanding at the per annum rate equal to the Prime rate of interest as
declared by Bank from time to time and adjusted daily, all of such
payments to be made in lawful money of the United States of America in
immediately available funds, without defalcation. "Prime" rate of
interest as used herein means a variable rate of interest announced from
time to time by Bank as its prime rate whether or not such rate if
otherwise published, which rate may not be Bank's lowest or best rate;
provided, that in the event this Note is assigned to another holder
which is a commercial bank, Prime rate shall mean the reference rate of
interest established by such subsequent holder from and after the date
of such assignment, as its prime rate from time to time. The Prime rate
shall be adjusted each time and at the time the Bank's Prime rate
changes.
2. This Note represents a renewal of, and not a novation of, that
certain Xxxxxxx and Restated Revolving Credit Note dated August 4, 1997,
which was modified by agreement dated April 22, 1998. All terms not
otherwise defined herein shall have the same meaning given to them in
the Loan Agreement and Amendments. Advances under this Note shall only
be made in accordance with the terms and conditions set forth in the
Loan Agreement and Amendments and provided that no Event of Default as
defined herein, in the Loan Agreement or Amendments has occurred or then
exists. This Note, the Loan Agreement, the Amendments and any and all
other documents referred to in the Loan Agreement or Amendments or
instruments securing repayment of this Note or relating thereto, whether
made by Borrower or any other person(s) or entities, are hereinafter
referred to collectively as the "Loan Documents".
3. This Note evidences indebtedness of Borrower to Bank which
indebtedness may increase or decrease from time to time and the total
amount advanced pursuant hereto may exceed the face amount hereof;
provided, however, the aggregate principal amount outstanding hereunder
shall not exceed the face amount of this Note at any time. It is
further contemplated that, by reason of payments hereon, there
may be times when no indebtedness is owing hereunder, but
notwithstanding such occurrences, this Note shall remain valid and shall
continue to be in full force and effect as to Advances made subsequent
to each such occurrence.
4. Borrower shall repay this Note by paying all accrued interest
monthly beginning on July 18, 1998 and continuing on the eighteenth day
of each month until June 18, 1999 (the "Maturity Date") at which time
all outstanding principal and accrued interest shall be due and payable
in full. Interest on this Note will be computed on the basis of the
actual number of days elapsed over an assumed year of 360 days. Borrower
shall make each payment under this Note not later than 12:00 p.m.
(Noon), Louisville, Kentucky, Eastern time, on the date when due, in
lawful money of the United States of America, to Bank at 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, in immediately
available funds. Borrower hereby authorizes Bank to charge against any
account of Borrower with Bank containing unrestricted funds any amount
so due. Whenever any payment to be made under this Note shall be stated
to be due on a Saturday, Sunday or a public holiday or banking holiday,
such payment shall be made on the next succeeding Domestic Business Day,
and such extension of time shall be in such case be included in the
computation of the payment of interest.
5. If any amount due hereunder is past due for more than fifteen (15)
days (whether by lapse of time or by reason of acceleration under the
provisions hereof or under the Loan Documents), or upon the occurrence
of any Event of Default defined hereinbelow, the interest rate on the
entire principal balance and all matured interest installments
outstanding shall increase by three percent (3%) per annum and shall
continue at that rate as long as any amount due is more than fifteen
(15) days late; provided, however, that the total interest rate charged
Borrower shall not exceed the maximum rate of interest allowed by law
and if such increased rate of interest exceeds the maximum amount
permitted under applicable law in such circumstances, the amount of the
increased interest rate shall be increased by such lesser maximum amount
as legally may be allowed, and Bank's entitlement to such sum shall be
in addition to, and not in lieu of, all other rights and remedies
available to Bank as a result of such overdue payment. If a law which
applies to this Note is interpreted so that the interest collected or to
be collected hereunder exceeds the legal amount, then the interest rate
charged hereunder shall be reduced by the amount necessary to reduce the
interest charged to the maximum legal amount and this Note and all sums
due hereunder shall immediately become due and payable in full at the
election of the holder hereof. It is agreed that all matured interest
installments outstanding shall also bear interest until paid at the same
rate that continues to accrue on the principal outstanding. Any payment
on this Note that is overdue for more than fifteen (15) days from its
due date shall be increased by an amount equal to the lesser of $250.00
or five percent (5%) of the overdue payment.
6. The occurrence of any Event of Default as described in the Loan
Agreement shall constitute an event of default under this Note, the
occurrence of which shall entitle the holder hereof to declare the
entire principal balance of this Note, together with all accrued
interest, and all other liabilities, indebtedness and obligations of
Borrower to Bank, whether now existing or hereafter created, to be
immediately due and payable, and to take any and all action allowed the
holder by law or equity, under the terms of this Note and/or under the
terms of the Loan Documents and under the terms of any other agreements
between Borrower and Bank.
7. All rights and remedies of Bank under this Note, the Loan
Documents, any document securing or relating thereto, and under any
other applicable law or at equity, are and shall be cumulative to the
greatest extent permitted by law. The delay or failure of Bank or the
holder hereof to insist upon strict performance of any of the terms of
this Note, or to exercise any rights herein confirmed shall not be
construed as a waiver or relinquishment to any extent of Bank's or the
holder's right to assert or rely upon such terms or rights at any
subsequent time or in any other instance.
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8. The Borrower and all endorsers, guarantors and all other parties
to this Note hereby:
(a) consent to the negotiation or assignment of this Note to any
other person at any time;
(b) waive presentment and demand, notice of demand, notice of
dishonor, protest and notice of protest and non-payment
thereof and all other notices or demands in connection with
the delivery, acceptance, performance, default, enforcement,
endorsement or guarantee hereof;
(c) waive all exemptions to which they may now or hereafter be
entitled under the laws of this or any other state or of the
United States;
(d) waive any requirement of marshaling of assets and all other
legal or equitable doctrines which might otherwise require
the holder hereof to proceed against any persons or any
collateral or any other property or with respect to any
other rights in any particular order and agree that the
holder may elect not to proceed against any collateral
securing this note and may instead seek to enforce and
collect this note through whatever means may otherwise be
available at law or equity;
(e) agree that Bank shall have the right, but not the
obligation, without notice to Borrower or any other party,
to renew this Note, grant the Borrower extensions of time
for, or changes in the amounts of, payment of this Note or
any other indulgence or forbearance by Bank, and Bank may
release any or all of the security and collateral for this
Note, and modify the terms of any of the Loan Documents or
any other document securing or relating to this Note, and
may release any guarantors, endorsers or any party to this
Note, and otherwise deal in any way, at any time, with
Borrower, or any guarantor of this Note or with any other
party who may become primarily or secondarily liable for any
of the obligations of Borrower under this Note, in every
instance without the consent of Borrower or any such other
parties and without in any way affecting the continuing
liability of the Borrower or any such other parties
hereunder or under any of the other Loan Documents.
9. Bank shall have the right to set off, at all times and without
notice to Borrower, and Borrower hereby grants Bank a security interest
in, any and all deposits, credits, accounts, securities, certificates of
deposit, cash, instruments, documents, general intangibles and any other
property or other sums of Borrower at any time or times held by Bank or
credited by or due from Bank to Borrower, whether held by Bank in a
fiduciary capacity or otherwise, and all products and proceeds thereof,
as additional security for all sums due hereunder and all other
liabilities of Borrower to Bank, whether now existing or hereafter
arising or acquired and whether absolute or contingent.
10. The Borrower agrees that it will pay to the Bank or the holder
hereof all costs and expenses, including without limitation reasonable
attorneys' fees, incurred by Bank in connection with the preparation of
this Note and all related documentation, the enforcement thereof, and
the collection or attempted collection of the sums due hereunder or in
securing or attempting to secure or protecting and defending or
attempting to protect and defend xxxxxx's interest in any property
securing this Note.
11. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR
ANY
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COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF BANK AND BORROWER. XXXXXXXX ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK.
12. The Borrower agrees that the sole proper venue for the
determination of any litigation commenced by either Borrower or Bank on
any basis shall be in a court of competent jurisdiction which is located
in Fayette County, Kentucky, and the parties hereby expressly declare
that any other venue shall be improper and Borrower expressly waives any
right to a determination of any such litigation against Bank by a court
in any other venue. Xxxxxxxx further agrees that service of process by
any judicial officer or by registered or certified U.S. mail shall
establish personal jurisdiction over Xxxxxxxx, and Borrower waives any
rights under the laws of any state to object to jurisdiction within the
Commonwealth of Kentucky. Xxxxxxxx acknowledges that this Note was
executed and delivered in the Commonwealth of Kentucky and shall be
governed and construed in accordance with the laws thereof. The
aforesaid means of obtaining personal jurisdiction and perfecting
service of process are not intended to be exclusive, but are cumulative
and in addition to all other means of obtaining personal jurisdiction
and perfecting service of process now or hereafter provided by the laws
of the Commonwealth of Kentucky or by any other state in an action
brought by Bank in such state.
13. The substantive laws of the Commonwealth of Kentucky (without
regard to provisions governing conflicts of laws) shall govern the
construction of this Note and the rights and remedies of the parties
hereto.
14. Time is of the essence in the payment and performance of all of
Borrower's obligations under this Note and all documents securing this
Note or relating hereto.
15. This Note cannot be modified, altered or amended except by an
agreement in writing duly signed and acknowledged by authorized
representatives of Bank and Borrower.
16. If any one or more of the provisions of this Note, or the
applicability of any such provision to a specific situation, shall be
held invalid or unenforceable, such provision shall be modified to the
minimum extent necessary to make it or its application valid and
enforceable, and the validity and enforceability of all other provisions
of this Note and all other applications of any such provision shall not
be affected thereby. In the event such provision(s) cannot be modified
to make it or them enforceable, the invalidity or unenforceability of
any such provision(s) of this Note shall not impair the validity or
enforceability of any other provision of this Note.
17. This Note shall bind the heirs, successors and assigns of Xxxxxxxx
and shall inure to the benefit of Bank and its successors and assigns.
Borrower shall not assign or allow the assumption of its rights and
obligations hereunder without Bank's prior written consent.
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DATED as of the day and year first above written.
COMMONWEALTH PREMIUM FINANCE
CORPORATION, a Kentucky corporation
BY: /s/ X.X. Xxxxx
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TITLE: President
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