RENEWAL REVOLVING CREDIT NOTE
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("Note")
COMMONWEALTH PREMIUM FINANCE CORPORATION
a Kentucky corporation
000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
$2,500,000.00
DATE: June 28, 2000
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
Five Hundred Thousand and 00/100 Dollars ($2,500,000.00) 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
December 28, 1999, as amended on June 28, 2000 (as amended, the "Loan
Agreement") 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 is 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, and not a novation, of that certain
Renewal Revolving Credit Note dated December 28, 1999. All terms not
otherwise defined herein shall have the same meaning given to them in the
Loan Agreement. Advances under this Note shall only be made in accordance
with the terms and conditions set forth in the Loan Agreement and provided
that no Event of Default as defined herein or in the Loan Agreement has
occurred or then exists. This Note, the Loan Agreement and any and all other
documents referred to in the Loan Agreement 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 30th, 2000, and continuing on the 30th day of each month
until June 30, 2001 (the "Maturity Date") at which time all outstanding
principal and accrued interest shall be due and payable in full. Interest on
this Note shall be computed by applying the ratio of the annual interest
rate over a year of 360 days, multiplied by the outstanding principal
balance, multiplied by the actual number of days the principal balance is
outstanding. Under no circumstances will the interest rate on this Note be
more than the maximum rate allowed by applicable law. Borrower shall make
each
payment under this Note not later than 12:00 p.m. (Noon), Lexington,
Kentucky, Eastern time, on the date when due, in lawful money of the United
States of America, to Bank at its Lexington Office, 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. The obligations evidenced by this Note and the Loan Agreement are
secured by the Security Agreement from Borrower, and a Stock Pledge and
Security Agreement (as defined in the Loan Agreement) from UNIFIED FINANCIAL
SERVICES, INC., which secures its Guaranty dated of even date, in favor of
Bank.
6. If any payment required under the Note is not paid within ten (10) days
after such payment is due, then, at the option of Bank, Borrower shall pay a
late charge equal to five percent (5.0%) of the amount of such payment or
$25.00, whichever is greater, up to the maximum amount of $750.00 per late
charge to compensate Bank for administrative expenses and other costs of
delinquent payments. This late charge may be assessed without notice, shall
be immediately due and payable and shall be in addition to all other rights
and remedies available to Bank. Upon the occurrence of any Event of Default
and during the continuation thereof, and after maturity, including maturity
upon acceleration, Bank, at its option, may, if permitted under applicable
law, do one or both of the following: (i) increase the interest rate under
this Note to the rate that is three percent (3.0%) above the rate that would
otherwise be payable thereunder, and (ii) add any unpaid accrued interest to
principal and such sum shall bear interest therefrom until paid at the rate
provided in this Note (including any increased rate). The interest rate
under this Note shall not exceed the maximum rate permitted by applicable
law under any circumstances 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 lights 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.
7. Bank and Borrower agree to binding arbitration as provided in Section
9.20 of the Loan Agreement.
8. The occurrence of any Event of Default specified in the Loan Agreement
or in any of the other Loan Documents or in any other agreement now or
hereafter arising between Borrower and Bank shall constitute an Event of
Default hereunder.
9. The occurrence of any Event of Default 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 under the terms of
any other agreements between Borrower and Bank.
10. All rights and remedies of Bank under this Note, 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
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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.
11. 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 tights 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; and
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.
12. Upon any Event of Default, Bank shall have the right to set off, 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, except those held by Bank in a
restricted or fiduciary capacity, 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.
13. Xxxxxxxx agrees that it will pay to Bank or the holder hereof an 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.
14. BORROWER AND BANK HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG
THEM ARISING OUT OF OR IN ANY WAY RELATED TO THIS NOTE, ANY OTHER LOAN
DOCUMENT OR ANY RELATIONSHIP BETWEEN BANK AND BORROWER. THIS PROVISION IS A
MATERIAL INDUCEMENT TO BANK TO PROVIDE THE FINANCING DESCRIBED HEREIN OR IN
THE OTHER LOAN DOCUMENTS.
15. Xxxxxxxx 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,
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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
Borrower, and Borrower waives any tights 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
DATED as of the day and year first above written.
COMMONWEALTH PREMIUM FINANCE CORPORATION, a
Kentucky corporation
BY: /s/ Xxxx X. Xxxxx
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TITLE: Vice President
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