EXHIBIT 1
XXXX XXXXXX, INC. COMMERCIAL/
XXXXX AGRICULTURAL
BANKS REVOLVING OR DRAW
NOTE-VARIABLE
RATE
XXXX XXXXX ILLINOIS BANK
ONE XXXX XXXXX BANK PLAZA
EDWARDSVILLE, IL 62025
(Lender)
ADDRESS
000 XXXXXX XXXXX
XXXXXXXXXX, XX 00000
TELEPHONE NO. IDENTIFICATION NO.
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OFFICER INTEREST PRINCIPAL FUNDING/ MATURITY CUSTOMER LOAN
INITIALS RATE AMOUNT/ AGREEMENT DATE DATE NUMBER NUMBER
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MD VARIABLE $2,250,000.00 10/15/96 10/15/01 8022873 54726
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ACQUISITION AND RELATED EXPENSE OF ERGOS TECHNOLOGY FROM WORK RECOVERY, INC.
PROMISE TO PAY: For value received, Xxxxxxxx promises to pay to the order of
Lender indicated above the principal amount of TWO MILLION TWO HUNDRED FIFTY
THOUSAND AND NO/100 Dollars ($2,250,000.00) or, if less, the aggregate unpaid
principal amount of all loans or advances made by the Lender to the Borrower,
plus interest on the unpaid principal balance at the rate and in the manner
described below. All amounts received by Xxxxxx shall be applied first to late
payment charges and expenses, then to accrued interest, and then to principal or
in any other order as determined by Xxxxxx, in Xxxxxx's sole discretion, as
permitted by law.
INTEREST RATE: This Note has a variable interest rate feature. Interest on the
Note may change from time to time if the Index Rate identified below changes.
Interest shall be computed on the basis of 360 days per year. Interest on this
Note shall be calculated at a variable rate equal to 500/1000 percent (0.500%)
per annum over the Index Rate. The Initial Index Rate is currently EIGHT AND
250/1000 percent (8.250%) per annum. Therefore, the initial interest rate on
this Note shall be EIGHT AND 750/1000 percent (8.750%) per annum. Any change in
the interest rate resulting from a change in the Index Rate will be effective
on: THE DATE OF SUCH CHANGE.
INDEX RATE: The Index Rate for this Note shall be: XXXX XXXXX BASE RATE, WHICH
LENDER MAY INCREASE OF DECREASE AT ANY TIME AT LENDER'S DISCRETION, IS PUBLICLY
AVAILABLE, AND WHICH MAY NOT NECESSARILY REFLECT THE RATE LENDER CHARGES TO ITS
OTHER CUSTOMERS, WHICH MAY BE LOWER.
MINIMUM RATE/MAXIMUM RATE: The minimum interest rate on this Note shall be n/a
percent (n/a%) per annum. The maximum interest rate on this Note shall not
exceed n/a percent (n/a%) per annum or the maximum interest rate Lender is
permitted to charge by law, whichever is less.
DEFAULT RATE: In the event of any default under this Note, the Lender may
determine that all amounts owed to Lender shall bear interest at the lesser of:
XXXX XXXXX BASE RATE PLUS 3.50% or the maximum interest rate Lender is permitted
to charge by law.
PAYMENT SCHEDULE: Borrower shall pay the principal and interest according to the
following schedule: ON DEMAND, IF NO DEMAND IS MADE, THEN INTEREST SHALL BE
PAYABLE MONTHLY BEGINNING NOVEMBER 15, 1996 THEN PRINCIPAL AND INTEREST PAYMENTS
OF $71,423.31 SHALL BEGIN NOVEMBER 15, 1998 AND CONTINUE ON THE SAME DAY OF EACH
MONTH THEREAFTER WITH THE UNPAID PRINCIPAL AND INTEREST BALANCE DUE ON
OCTOBER 15, 2001.
All payments will be made to Lender at its address described above and in lawful
currency of the United States of America.
RENEWAL: If checked, [ ] this Note is a renewal of loan number _______________.
SECURITY: To secure the payment and performance of obligations incurred under
this Note, Borrower grants Lender a security interest in, and pledges and
assigns to Lender all of Borrower's rights, title, and interest, in all monies,
instruments, savings, checking and other deposit accounts of Borrower's,
(excluding IRA, Xxxxx and trust accounts and deposits subject to tax penalties
if so assigned) that are now or in the future in Xxxxxx's custody or control. x/
If checked, the obligations under this Note are also secured by a lien and/or
security interest in the property described in the documents executed in
connection with this Note as well as any other property designated as security
for this Note now or in the future. THIS NOTE IS SECURED BY A SECURITY AGREEMENT
DATED MARCH 27, 1995.
PREPAYMENT: This Note may be prepaid in part or in full on or before its
maturity date. If this Note contains more than one installment, all prepayments
will be credited as determined by Xxxxxx and as permitted by law. If this Note
is prepaid in full, there will be: [X] No minimum finance charge or prepayment
penalty. [ ] A minimum finance charge of $____________. [ ] A prepayment penalty
of ______% of the principal prepaid.
LATE PAYMENT CHARGE: If a payment is received more than 10 days late, Borrower
will be charged a late payment charge of: [ ] ______% of the unpaid late
installment; [X] $10.00 or 10.00% of the payment amount, whichever is [X]
greater [ ] less; as permitted by law.
REVOLVING OR DRAW FEATURE: [ ] This Note possesses a revolving feature. Upon
satisfaction of the conditions set forth in this Note, Borrower shall be
entitled to borrow up to the full principal amount of the Note and to repay and
reborrow from time to time during the term of this Note. [X] This Note possesses
a draw feature. Upon satisfaction of the conditions set forth in this Note,
Borrower shall be entitled to make one or more draws under this Note. The
aggregate amount of such draws shall not exceed the full principal amount of
this Note. Lender shall maintain a record of the amounts loaned to and repaid by
Borrower under this Note. The aggregate unpaid principal amount shown on such
record shall be rebuttable presumptive evidence of the principal amount owing
and unpaid on this Note. The Lender's failure to record the date and amount of
any loan or advance shall not limit or otherwise affect the obligations of the
Borrower under this Note to repay the principal amount of the loans or advances
together with all interest accruing thereon. Lender shall not be obligated to
provide Borrower with a copy of the record on a periodic basis. Borrower shall
be entitled to inspect or obtain a copy of the record during Xxxxxx's business
hours.
CONDITIONS FOR ADVANCES: If there is no default under this Note, Borrower shall
be entitled to borrow monies under this Note (subject to the limitations
described above) under the following conditions:
XXXXXXXX ACKNOWLEDGES THAT XXXXXXXX HAS READ, UNDERSTANDS, AND AGREES TO THE
TERMS AND CONDITIONS OF THIS NOTE INCLUDING THE PROVISIONS ON THE REVERSE SIDE.
BORROWER ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS NOTE.
NOTE DATE: OCTOBER 15, 1996
BORROWER: ALLSUP, INC. BORROWER:
/S/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
PRESIDENT
BORROWER: BORROWER:
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BORROWER: BORROWER:
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BORROWER: BORROWER:
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TERMS AND CONDITIONS
1. DEFAULT: Borrower will be in default under this Note in the event that
Borrower or any guarantor:
(a) fails to make any payment on this note or any other indebtedness to
Lender when due;
(b) fails to perform any obligation or breaches any warranty or covenant to
Lender contained in this Note or any other present or future written
agreement regarding this or any indebtedness of Borrower to Lender;
(c) provides or causes any false or misleading signature or representation
to be provided to Lender;
(d) allows the collateral securing this Note (if any) to be lost, stolen,
destroyed, damaged in any material respect, or subjected to seizure or
confiscation;
(e) permits the entry or service of any garnishment, judgment, tax levy,
attachment or lien against Xxxxxxxx, any guarantor, or any of their
property;
(f) dies, becomes legally incompetent, is dissolved or terminated, ceases
to operate its business, becomes insolvent, makes an assignment for the
benefit of creditors, or becomes the subject of any bankruptcy,
insolvency or debtor rehabilitation proceeding; or
(g) causes Lender to deem itself insecure for any reason, or Lender, for
any reason, in good xxxxx xxxxx itself insecure.
2. RIGHTS OF LENDER ON DEFAULT: If there is a default under this Note, Lender
will be entitled to exercise one or more of the following remedies without
notice or demand (except as required by law):
(a) to cease making additional advances under this Note;
(b) to declare the principal amount plus accrued interest under this Note
and all other present and future obligations of Borrower immediately
due and payable in full;
(c) to collect the outstanding obligations of Borrower with or without
resorting to judicial process;
(d) to take possession of any collateral in any manner permitted by law;
(e) to require Borrower to deliver and make available to Lender any
collateral at a place reasonably convenient to Borrower and Lender;
(f) to sell, lease or otherwise dispose of any collateral and collect any
deficiency balance with or without resorting to legal process;
(g) to set-off Borrower's obligations against any amounts due to Borrower
including, but not limited to monies, instruments, and deposit accounts
maintained with Lender; and
(h) to exercise all other rights available to Lender under any other
written agreement or applicable law.
Xxxxxx's rights are cumulative and may be exercised together, separately,
and in any order. Xxxxxx's remedies under this paragraph are in addition to
those available at common law, including, but not limited to, the right of
set-off.
3. DEMAND FEATURE: If this Note contains a demand feature, then
notwithstanding anything to the contrary contained in this Note, Xxxxxx's
rights with respect to the events of default identified above shall not be
limited, restricted, impaired or otherwise adversely affected by the demand
feature of this Note. Xxxxxx's right to demand payment, at any time, and
from time to time, shall be in Xxxxxx's sole and absolute discretion,
whether or not any default has occurred.
4. FINANCIAL INFORMATION: Borrower will provide Lender with current financial
statements and other financial information (including, but not limited to,
balance sheets and profit and loss statements) upon request.
5. MODIFICATION AND WAIVER: The modification or waiver of any of Borrower's
obligations or Xxxxxx's rights under this Note must be contained in a
writing signed by Xxxxxx. Lender may perform any of Borrower's obligations
or delay or fail to exercise any of its rights without causing a waiver of
those obligations or rights. A waiver on one occasion will not constitute a
waiver on any other occasion. Borrower's obligations under this Note shall
not be affected if Lender amends, compromises, exchanges, fails to
exercise, impairs or releases any of the obligations belonging to any
co-borrower or guarantor or any of its rights against any co-borrower,
guarantor or collateral.
6. SEVERABILITY AND INTEREST LIMITATION: If any provision of this note is
invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby. Notwithstanding anything contained in this Note to the
contrary, in no event shall interest accrue under this Note, before or
after maturity, at a rate in excess of the highest rate permitted by
applicable law, and if interest (including any charge or fee held to be
interest by a court of competent jurisdiction) in excess thereof be paid,
any excess shall constitute a payment of, and be applied to, the principal
balance hereof, and if the principal balance has been fully paid, then such
interest shall be repaid to the Borrower.
7. ASSIGNMENT: Borrower will not be entitled to assign any of its rights,
remedies or obligations described in this Note without the prior written
consent Lender which may be withheld by Lender in its sole discretion.
Lender will be entitled to assign some or all of its rights and remedies
described in this Note without notice to or the prior consent of Borrower
in any manner.
8. NOTICE: Any notice or other communication to be provided to Borrower or
Lender under this Note shall be in writing and sent to the parties at the
addresses described in this Note or such other address as the parties may
designate in writing from time to time.
9. APPLICABLE LAW: This Note shall be governed by the laws of the state
indicated in Xxxxxx's address. Borrower consents to the jurisdiction and
venue of any court located in the state indicated in Xxxxxx's address in
the event of any legal proceeding pertaining to the negotiation, execution,
performance or enforcement of any term or condition contained in this Note
or any related loan document and agrees not to commence or seek to remove
such legal proceeding in or to a different court.
10. COLLECTION COSTS: If Xxxxxx hires an attorney to assist in collecting any
amount due or enforcing any right or remedy under this Note, Xxxxxxxx
agrees to pay Xxxxxx's attorney's fees, to the extent permitted by
applicable law, and collection costs.
11. MISCELLANEOUS: This Note is being executed for commercial/agricultural
purposes. Xxxxxxxx and Xxxxxx agree that time is of the essence. Borrower
waives presentment, demand for payment, notice of dishonor and protest.
Borrower hereby waives any right to trial by jury in any civil action
arising out of, or based upon, this Note or the collateral securing this
Note. If Xxxxxx obtains a judgment for any amount due under this Note,
interest will accrue on the judgment at the Default Rate described in this
Note. All references to Borrower in this Note shall include all of the
parties signing this Note. If there is more than one Borrower, their
obligations will be joint and several. This Note and any related documents
represent the complete and integrated understanding between Borrower and
Lender pertaining to the terms and conditions of those documents.
12. CONFESSION OF JUDGMENT: IN ADDITION TO THE RIGHTS OF XXXXXX ON DEFAULT
LISTED ABOVE, XXXXXXXX IRREVOCABLY AUTHORIZES ANY ATTORNEY TO APPEAR IN A
COURT OF RECORD AND WAIVE THE ISSUANCE OR SERVICE OF PROCESS AND CONFESS
JUDGMENT AGAINST XXXXXXXX, IN FAVOR OF XXXXXX, FOR ANY SUM UNPAID AND DUE
ON THIS NOTE, TOGETHER WITH ALL FEES, COSTS AND EXPENSES OF COLLECTION AND
OTHERWISE AS PROVIDED HEREIN, INCLUDING REASONABLE ATTORNEYS' FEES, AND
FURTHER AUTHORIZES SUCH ATTORNEY TO WAIVE ALL RIGHT OF APPEAL AND CONSENT
TO IMMEDIATE EXECUTION UPON SUCH JUDGMENT. XXXXXXXX HEREBY AGREES THAT NO
WRIT OF ERROR OR APPEAL WILL BE PROSECUTED FROM ANY SUCH JUDGMENT, NOR ANY
BILL IN EQUITY FILED TO RESTRAIN THE OPERATION OF SUCH JUDGMENT OR ANY
EXECUTION THEREON.
13. ADDITIONAL TERMS: XXXXXXXX AGREES THAT LENDER, AT ITS OPTION, MAY EXTEND OR
RENEW THIS NOTE. $15 IS CHARGED FOR NON XXXX XXXXX CHECKS RETURNED FOR
INSUFFICIENT FUNDS. THE UNDERSIGNED AGREE THAT THE CONSENT TO JURISDICTION
AND VENUE HEREIN SHALL NOT PROHIBIT OR LIMIT LENDER FROM BRINGING ANY
ACTION OR PROCEEDING HEREUNDER IN ANY JURISDICTION OR VENUE THAT IS
OTHERWISE PROPER.
