Commercial Note Borrower: Debut Broadcasting Mississippi, Inc Date: August 22, 2008 Borrower Address: 1209 16th Avenue S. Ste 200 Nashville, TN 37212 Loan Amount: Five Hundred Thousand Dollars and no cents ($500,000.00) Account No : 10969113 Note No :...
EXHIBIT
10.1
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SuNTRust
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Borrower:
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Debut
Broadcasting Mississippi, Inc
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Date:
August 22, 2008
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Borrower
Address:
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0000
00xx Xxxxxx X.
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Ste
200
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Nashville,
TN 37212
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Loan
Amount:
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Five
Hundred Thousand Dollars and no cents ($500,000.00)
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Account
No :
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00000000
Note No : 26
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Officer:
Xxxxxx X Xxxxxx, 23158
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For
value
received, the borrower(s) named above whether one or more, (the "Borrower"),
jointly and severally promise to pay to the order of SunTrust Bank, a Georgia
banking corporation ("Sun-Trust") without offset in U.S. Dollars and in
immediately available funds, the Loan Amount shown above, or the total of
all
amounts advanced under this commercial note and any modifications, renewals,
extensions or replacements thereof (this "Note") if less than the full Loan
Amount is advanced, plus interest and any other amounts due, upon the terms
specified below
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Loan
Type:
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Revolving
Master Borrowing Loan This is an open and revolving line of credit.
Borrower may borrow an aggregate
principal amount up to the Loan Amount outstanding at any one time.
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Repayment
Terms:
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Principal
is due and payable in full on the Maturity Date, but the Borrower
shall be
liable for only so much of the
Loan Amount as shall be equal to the total amount advanced to the
Borrower
by SunTrust from time to time,
less all payments made by or for the Borrower and applied by SunTrust
to
principal Advances under this Note shall be recorded and maintained
by
SunTrust in its internal records and such records shall be conclusive
of
the principal and Interest owed by Borrower unless there is a material
error In such records Accrued
interest will be payable on the 22nd day of each month beginning
on
September 22, 2008, with all unpaid accrued interest due and payable
on
the Maturity Date
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"Maturity
Date" means August 22, 2009 or such date to which this Note may
be
extended or renewed in the sole discretion of SunTrust by written
notice
from SunTrust to Borrower.
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Interest
Interest
will accrue on an actual/360 basis (on the actual number of days elapsed
over a
year of 360 days). Interest shall accrue from the date of disbursement on
the
unpaid balance and shall continue to accrue until this Note is paid in full.
This is a variable rate transaction. The Interest rate is prospectively subject
to increase or decrease without prior notice Subject to the above, Interest
per
annum payable on this Note (the "Rate") shall be a variable rate based on
the
following Index: The Prime Rate as established from time to time by SunTrust
Bank. The SunTrust Prime Rate Is a reference for fixing the lending rate
for
commercial loans and does not necessarily represent the lowest rate of interest
charged for commercial borrowings The Sun? rust Prime Rate is subject to
increase or decrease at the sole option of SunTrust. The Rate shall be equal
to
the Index plus 1.00% per annum. Adjustments to the Rate shall be effective
as of
the date the Index changes. The Rate shall not exceed any maximum interest
rate
permitted by applicable law
Collateral
Unless
otherwise agreed in writing, any collateral pledged to SunTrust to secure
any of
the existing or future liabilities of the Borrower to SunTrust shall also
secure
this Note To the extent permitted by law, the Borrower grants to SunTrust
a
security interest in and a lien upon all deposits and investments maintained
by
the Borrower with SunTrust and any affiliates thereof Collateral for this
Note
includes, but is not limited to, the following: All assets, including but
not
limited to, accounts, inventory, furniture, fixtures, equipment; general
intangibles, instruments, documents and chattel paper, whether now existing
or
hereafter acquired, and all proceeds and products thereof as more particularly
described in a Security Agreement executed by Debut Broadcasting Mississippi,
Inc. dated this date. All of the foregoing security is referred to collectively
as the "Collateral". Unless otherwise agreed in writing, the Collateral is
security for the payment of this Note and any other liability (including
overdrafts and future advances) of the Borrower to SunTrust, however evidenced,
now existing or hereafter incurred, matured or unmatured, direct or indirect,
absolute or contingent, several, joint, or joint and several, including any
extensions, modifications or renewals The proceeds of any Collateral may
be
applied against the liabilities of the Borrower to SunTrust in such order
as
SunTrust deems proper.
Loan
Purpose And Updated Financial Information Required
The
Borrower warrants and represents that the loan evidenced by this Note is
being
made solely for the purpose of acquiring or carrying on a business, professional
or commercial activity or acquiring real or personal property as an investment
(other than a personal investment) or for carrying on an Investment activity
(other than a personal investment activity). The Borrower agrees to provide
to
SunTrust updated financial information, including, but not limited to, tax
returns and current financial statements in form satisfactory to SunTrust,
as
well as additional information, reports or schedules (financial or otherwise),
all as SunTrust may from time to time request.
Representations
and Warranties
This
Note
has been duly executed and delivered by Xxxxxxxx, constitutes Borrower's
valid
and legally binding obligations and is enforceable in accordance with its
terms
against Borrower. The execution, delivery and performance of this Note and
the
consummation of the transaction contemplated will not, with or without the
giving of notice or the lapse of time, (a) violate any material law applicable
to Borrower, (b) violate any judgment, writ, injunction or order of any court
or
governmental body or officer applicable to Borrower, (c) violate or result
in
the breach of any material agreement to which Borrower is a party nor (d)
as
applicable, violate any charter, bylaws, operating agreement, partnership
agreement or any other agreement by which Borrower is bound No consent,
approval, license, permit or other authorization of any third party or any
governmental body or officer is required for the valid and lawful execution
and
delivery of this Note.
Default,
Acceleration And Setoff
As
used
herein the term "Obligor" shall individually and collectively refer to the
Borrower and any person or entity that is primarily or secondarily
liable on this Note and any person of entity that has conveyed or may hereafter
convey any security interest or lien to SunTrust in any real or personal
property to secure payment of this Note. An "event of default" shall occur
hereunder upon the occurrence of any one or more of the following events
or
conditions:
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(a)
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the
failure by any Obligor to pay when due, whether by acceleration
or
otherwise, any amounts owed under this Note;
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(b)
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the
occurrence of any event of default under any agreement or loan
document
executed in conjunction with this Note or the failure of any
Obligor to
perform any covenant, promise or obligation contained in this
Note or any
other agreement to which any Obligor and Sun Trust are parties;
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(c)
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the
xxxxxx of any representation or warrantee of any Obligor contained
in this
Note or any other agreement with SunTrust;
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(d)
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the
failure of any Obligor to pay when due any amount owed to any
creditor
other than Sun Trust under a written agreement calling for the
payment of money;
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(e)
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the
death, declaration of incompetency, dissolution, liquidation,
merger,
consolidation, termination or suspension of usual business of
any Obligor;
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(f)
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any
person or entity, or any group of related persons or entities,
shall have
or obtain legal or beneficial ownership of a majority of the
outstanding
voting securities or rights of any Obligor that is not a natural
person,
other than any person or entity, or any
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group
of related persons or entities that has such majority ownership
as of the
date of this Note;
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(g)
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the
insolvency or inability to pay debts as they mature of any Obligor,
the
application for the appointment of a receiver for any Obligor,
the filing
of a petition or the commencement of a proceeding by or against
any
Obligor under any provision of any applicable Bankruptcy Code
or other
insolvency law, or statute, or any assignment for the benefit
of creditors
by or against any Obligor;
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(h)
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the
entry of a judgment or the issuance or service of any attachment,
levy or
garnishment against any Obligor or the property of any Obligor
or the
repossession or seizure of property of any Obligor;
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(i)
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a
determination by SunTrust that a material adverse change in the
financial
condition of any Obligor has occurred since the date of this
Note;
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(j)
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any
Obligor commits fraud or makes a material misrepresentation at
any time in
connection with this Note or any Collateral;
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(k)
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any
deterioration or impairment of the Collateral or any decline
or
depreciation in the value of the Collateral which causes the
Collateral in
the judgment of SunTrust to become unsatisfactory as to character
or
value;
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(l)
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the
sale or transfer by any Obligor of all or substantially all of
such
Xxxxxxx's assets other than in the ordinary course of
business;
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(m)
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the
termination of any guaranty of this Note by a guarantor;
or
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(n)
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any
other act or circumstances leading SunTrust to doom itself
insecure.
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SunTrust
shall not be obligated to fund this Note or make any advance under this Note
if
an event of default exists or would exist if such funding
occurred or such advance made. Upon the occurrence of an event of default,
SunTrust shall, at its option, have the remedies provided
herein and by any other agreement between SunTrust and any Obligor or under
applicable law, including without limitation, declaring
the entire outstanding principal balance, together with all interest thereon
and
any other amounts due under this Note, to be due
and
payable immediately without presentment, demand, protest, or notice of any
kind,
except notice. required by law and SunTrust's
obligation to make advances under this Note shall automatically terminate
without notice or further action by SunTrust. Upon
the
occurrence of an event of default under section g above, the entire outstanding
principal balance, together with all interest thereon
and any other amounts due under this Note, shall automatically become due
and
payable without presentment, demand, protest, or notice of any kind except
notice required by law Upon the occurrence of an event of default, as of
the
date of such event of default,
SunTrust, at its option, may charge interest on the unpaid balance of this
Note
at the lesser of (i) the Rate plus 4.00% per annum
or
(ii) the maximum rate allowed by law (the "Default Rate") until paid in full.
To
the extent permitted by law, upon default SunTrust will have the right, in
addition to all other remedies provided herein, to set off the amount due
under
this Note or due under any
other
obligation to SunTrust against any and all accounts, whether checking or
savings
or otherwise, credits, money, stocks, bonds or
other
security or property of any nature whatsoever on deposit with, held by, owed
by,
or in the possession of, SunTrust to the credit of
or for
the account of any Obligor, without notice to or consent by any Obligor.
The
remedies provided in this Note and any other agreement
between SunTrust and any Obligor and by applicable law are cumulative and
not
exclusive of any other remedies provided by applicable
law.
Late
Charges And Other Authorized Fees And Charges
It
any
portion of a payment is at least 10 days past due, the Borrower agrees to
pay a
late charge of 5% of the amount which is past due. Unless prohibited by
applicable law, the Borrower agrees to pay the fee established by SunTrust
from
time to time for returned checks if a payment is made on this Note with a
check
and the check is dishonored for any reason after the second presentment.
In
addition to any other amounts owed under the terms of this Note, the Borrower
agrees to pay those fees and charges disclosed in the attached Disbursements
and
Charges Summary which is incorporated in this Note by reference and, as
permitted by applicable law, the Borrower agrees to pay the following; (a)
all
expenses, including, without limitation, any and all costs Incurred by SunTrust
related to default, all court costs and out-of-pocket collection expenses
and
reasonable attorneys' fees whether suit be brought or not, incurred in
collecting this Note; (b) all costs incurred in evaluating, preserving or
disposing of any Collateral granted as security for the payment of this Note,
including the cost of any audits, appraisals, appraisal updates, reappraisals
or
environmental inspections which SunTrust from time to time in its sole
discretion may deem necessary; (c) any premiums for property insurance purchased
on behalf of the Borrower or on behalf of the owner(s) of any Collateral
pursuant to any security instrument relating to any Collateral; and (d) any
expenses or costs incurred in defending any claim arising out of the execution
of this Note or the obligation which it evidences, or otherwise involving
the
employment by SunTrust of attorneys with respect to this Note and the
obligations it evidences. The Borrower agrees to pay such amounts on demand
or,
at SunTrust's option, such amounts may be added to the unpaid balance of
the
Note and shall accrue interest at the stated Rate. Upon the occurrence of
an
event of default, or after demand and failure to pay if this Note is payable
on
demand, Interest shall accrue at the Default Rate.
Prepayment
Provision
Borrower
may make a prepayment in any amount at any time without penalty.
Payments
Borrower
Is directed to make payments at the address indicated on the billing statement
provided by SunTrust, or at such place as SunTrust may otherwise indicate
in
writing Payments may also be made at those SunTrust branches which accept
loan
payments, however, the Borrower acknowledges that the Borrower is not directed
to make payments at such branches and that SunTrust's acceptance of payments
at
such branches is an accommodation to the Borrower which may be revoked at
any
time in SunTrust's sole and absolute discretion All amounts received by SunTrust
shall be applied to expenses, late fees and interest before principal or
in any
other order as determined by SunTrust, in it sole discretion, as permitted
by
law. Payments will be credited as of the date stamped upon receipt, or as
of the
standard payment processing date for similar payments if a payment Is not
stamped Payments received on Saturday will be credited on SunTrust's next
business day If any payment date falls on a Saturday or Sunday or a legal
bank
holiday, payment will be due on the next business day. SunTrust's business
days
are Monday through Friday, not including legal bank holidays.
Waivers
The
Borrower and each other Obligor waive presentment, demand, protest, notice
of
protest and notice of dishonor and waive all exemptions, whether homestead
or
otherwise, as to the obligations evidenced by this Note and waive any discharge
or defenses based on suretyship or impairment of Collateral or of recourse.
The
Borrower and each other Obligor waive any rights to require SunTrust to proceed
against any other Obligor or any Collateral before proceeding against the
Borrower or any of them, or any other Obligor, and agree that without notice
to
any Obligor and without affecting any Obligor's liability, SunTrust, at any
time
or times, may grant extensions of the time for payment or other indulgences
to
any Obligor or permit the renewal or modification of this Note, or permit
the
substitution, exchange or release of any Collateral for this Note and may
add or
release any Obligor primarily or secondarily liable. The Borrower and each
other
Obligor agree that SunTrust may apply all monies made available to it from
any
part of the proceeds of the disposition of any Collateral or by exercise
of the
right of setoff either to the obligations under this Note or to any other
obligations of any Obligor to SunTrust, as SunTrust may elect from time to
time.
Waiver
of Jury Trial
THE
BORROWER AND SUNTRUST HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
RIGHT
EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION,
WHETHER
IN CONTRACT OR TORT, AT LAW OR IN EQUITY, BASED HEREON OR ARISING OUT OF,
UNDER
OR IN CONNECTION WITH THIS NOTE AND ANY OTHER DOCUMENT OR INSTRUMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS NOTE, OR ANY COURSE
OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF
ANY PARTY HERETO THIS PROVISION IS A MATERIAL INDUCEMENT FOR SUNTRUST ENTERING
INTO OR ACCEPTING THIS NOTE. FURTHER, THE BORROWER HEREBY CERTIFIES THAT
NO
REPRESENTATIVE OR AGENT OF SUNTRUST, NOR SUNTRUST'S COUNSEL, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUNTRUST WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION.
Patriot
Act Notice
SunTrust
hereby notifies Borrower that pursuant to the requirements of the USA PATRIOT
Act Title III of Pub L 10756 (signed into law October 26, 2001), SunTrust
may be
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow SunT rust to identify the Borrower in accordance
with the Act.
Hold
Harmless and Indemnification
Borrower
hereby Indemnifies and agrees to hold SunTrust and its officers, directors,
employees, agents and affiliates harmless from and against all claims,
damages,
liabilities (including attorneys' fees and legal expenses), causes of action,
actions, suits and other legal proceedings (collectively, "Claims") in
any
matter relating to or arising out of this Note or any loan document executed
in
connection with this Note, or any act, event or transaction related thereto
or
to the Collateral. Borrower shall immediately provide SunTrust with written
notice of any such Claim. Upon request of SunTrust, Borrower shall defend
SunTrust from such Claims, and pay the attorneys' fees, legal expenses
and other
costs incurred in connection therewith, or in the alternative, SunTrust
shall be
entitled to employ its own legal counsel to defend such Claims at Borrower's
sole expense.
Miscellaneous
All
amounts received by Sun I rust shall be applied to expenses, late fees and
Interest before principal or in any other order as determined by SunTrust,
in it
sole discretion, as permitted by law Any provision of this Note which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
of
this Note. No amendment, modification, termination or waiver of any provision
of
this Note, nor consent to any departure by the Borrower from any term of
this
Note, shall in any event be effective unless it is in writing and signed
by an
authorized officer of SunTrust, and then such waiver or consent shall be
effective only in the specific Instance and for the specific purpose for
which
given No failure or delay on the part of SunTrust to exercise any right,
power
or remedy under this Note shall be construed as a waiver of the right to
exercise the same or any other right at any time. If the Rate is tied to
an
external index and the index becomes unavailable during the term of this
loan,
SunTrust may, in its sole and absolute discretion, designate a substitute
index
with notice to the Borrower. The captions of the paragraphs of this Note
are for
convenience only and shall not be deemed to constitute a part hereof or used
in
construing the intent of the parties. All representations, warranties, covenants
and agreements contained herein or made in writing by Xxxxxxxx in connection
herewith shall survive the execution and delivery of this Note and any other
agreement, document or writing relating to or arising out of any of the
foregoing. All notices or communications given to Borrower pursuant to the
terms
of this Note shall be in writing and may be given to Borrower at Borrower's
address as stated below or at the top of this Note unless Borrower notifies
SunTrust in writing of a different address. Unless otherwise specifically
provided herein to the contrary, such written notices and communications
shall
be delivered by hand or overnight courier service, or mailed by first class
mail, postage prepaid, addressed to the Borrower at the address referred
to
herein. Any written notice delivered by hand or by overnight courier service
shall be deemed given or received upon receipt Any written notice delivered
by
U. S. Mail shall be deemed given or received on the third (3`) business day
after being deposited in the US Mail.
Notwithstanding
any provision of this Note or any loan document executed in connection with
this
Note to the contrary, the Borrower and SunTrust intend that no provision
of this
Note or any loan document executed in connection with this Note be interpreted,
construed, applied, or enforced in a way that will permit or require the
payment
or collection of interest in excess of the highest rate of interest permitted
to
be paid or collected by the laws of the jurisdiction indicated below, or
federal
law if federal law preempts the law of such jurisdiction with respect to
this
transaction (the “Maximum Permitted Rate”). If, however, any such provision is
so interpreted, construed, applied, or enforced, Borrower and SunTrust intend
(a) that such provision automatically shall be deemed revised so as to require
payment only of interest at the Maximum Permitted Rate; and (b) if interest
payments in excess of the Maximum Permitted Rate have been received, that
the
amount of such excess shall be deemed credited retroactively in reduction
of the
then-outstanding principal amount of this obligation, together with interest
at
the Maximum Permitted Rate. In connection with all calculations to determine
the
Maximum Permitted Rate, the Borrower and SunTrust intend (a) that all charges
be
excluded to the extent they are properly excludable under the usury laws
of such
jurisdiction or the United States, as they from time to time are determined
to
apply to this obligation; and (b) that all charges that may be spread in
the
manner provided by statute of the jurisdiction indicated or any similar law,
be
so spread.
Liability,
Successors And Assigns And Choice Of Law
Each
Borrower shall be jointly and severally obligated and liable on this Note.
This
Note shall apply to and bind each of the Borrower's heirs, personal
representatives, successors and permitted assigns and shall inure to the
benefit
of SunTrust, its successors and assigns. Notwithstanding the foregoing, Borrower
shall not assign Borrower's rights or obligations under this Note without
SunTrust's prior written consent. The Borrower agrees that certain material
events and occurrences relating to this Note bear a reasonable relationship
to
the laws of Tennessee. This Note shall be governed by the laws of Tennessee
and,
unless applicable law provides otherwise, in the event of any legal proceeding
arising out of or related to this Note, the Borrower consents to the
jurisdiction and venue of any court located in Tennessee.
Documentary
and Intangible Taxes
In
the
event that any intangible tax or documentary stamp tax is due from SunTrust
to
any state or other governmental agency or authority because of the execution
or
holding of this Note, the Borrower shall, upon demand, reimburse SunTrust
for
any such tax paid.
Transfer
of Loan SunTrust
may, at any time, sell, transfer or assign the Note, the related security
instrument and any related loan documents, and any or all servicing rights
with
respect thereto, or grant participations therein or issue mortgage pass-through
certificates or other securities evidencing a beneficial interest in a rated
or
unrated public offering or private placement (the "Securities"). SunTrust
may
forward to each purchaser, transferee, assignee, servicer, participant, or
investor in such Securities or any Rating Agency (as hereinafter defined)
rating
such Securities (collectively, the "Investor") and each prospective Investor,
all documents and information which SunTrust now has or may hereafter acquire
relating to the Borrower, any loan to Borrower, any guarantor of the property,
whether furnished by Borrower, any guarantor or otherwise, as SunTrust
determines necessary or desirable. The term "Rating Agency" shall mean each
statistical rating agency that has assigned a rating to the
Securities.
By
signing below under seal, the Borrower agrees to the terms of this Note and
the
disbursement of proceeds as described in the Disbursements and Charges Summary
provided in connection with this transaction
Debut
Broadcasting Mississippi, Inc
By:
/s/
Xxxxxx Xxxxxxxx
Xxxxxx
Xxxxxxxx, Chairman & President
And:
/s/
Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx, CEO
Xxxxxxxx's
Billing Address:
0000
00xx
Xxxxxx X.
Ste
200
Nashville,
TN 37212
