EXHIBIT 10.35
TERM NOTE
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("Note")
EQUITY UNDERWRITING GROUP, INC.
a Kentucky corporation
000 Xxxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
EQUITY INSURANCE MANAGERS, INC.
a Kentucky corporation
000 Xxxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
$800,000.00
DATE: February 25, 1999
Executed at Lexington, Kentucky
1. FOR VALUE RECEIVED, EQUITY UNDERWRITING GROUP, INC. and
EQUITY INSURANCE MANAGERS, INC. (collectively the "Borrower"), promises
to pay to the order of BANK ONE, KENTUCKY, NA, a national banking
association (the "Bank"), the principal sum of Eight Hundred Thousand
Dollars ($800,000.00) or so much thereof as may be advanced by Bank and
outstanding from time to time under this Note, 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. Borrower shall repay this Note by paying accrued interest
monthly beginning on March 20, 1999 and continuing on the 20th day of
each month until June 20, 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),
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.
3. This Note is mentioned in the Second Amendment to Loan
Agreement dated of even date. This Note, the Second Amendment to Loan
Agreement and all other documents defined therein shall be collectively
referred to herein as the "Loan Documents".
4. The obligations evidenced by this Note or the other Loan
Documents are secured by the Security Agreements dated January 20, 1998,
and the Stock Pledge and Security Agreement dated of even date from
Unified Financial Services, Inc., which secures its Guaranty dated of
even date, in favor of the Bank.
5. If any amount due hereunder is past due for more than ten
(10) days Borrower will be charged five percent (5%) of the regularly
scheduled payment up to the maximum amount of $1,500.00 with a minimum
of $25.00 per late charge. 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; 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.
6. Bank and Borrower agree to binding arbitration as provided
in Section 8.18 of the Loan Agreement.
7. Borrower will be in default if any of the following happens:
(a) Borrower fails to make any payment or principal or interest within
ten (10) days of its due date under this Note or any other indebtedness
owing now or hereafter by Borrower to Bank; (b) failure of Borrower or
any other party to comply with or perform any term, obligation, covenant
or condition contained in this Note or in any other promissory note,
credit agreement, loan agreement, guaranty, security agreement,
mortgage, deed of trust or any other instrument, agreement or document,
within thirty (30) days after receipt of written notice, whether now or
hereafter existing, executed in connection with this Note or the other
Loan Documents; (c) any representation or statement made or furnished to
Lender herein, in any of the Loan Documents or in connection with any of
the foregoing is false or misleading in any material respect and said
default shall continue unremedied for a period of thirty (30) days after
date of written notice; (d) Borrower dissolves, becomes insolvent or
bankrupt, has a receiver or trustee appointed for any part of its
property, makes an assignment for the benefit of its creditors, or any
proceeding is commenced either by any such party or against it under any
bankruptcy or insolvency laws; (e) the occurrence of any event of
default specified in any of the other Loan Documents or in any other
agreement now or hereafter arising between Borrower and Bank; (f) the
occurrence of any event which permits the acceleration of the maturity
of any indebtedness owing now or hereafter by Borrower to any third
party; or (g) the liquidation, termination, dissolution, death or legal
incapacity of Borrower or any other party liable for the payment of this
Note, whether as maker, endorser, guarantor, surety, or otherwise.
8. 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,
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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. Upon default, including failure to pay upon final maturity,
Bank, at its option, may also, if permitted under applicable law, do one
or both of the following: (a) increase the applicable interest rate on
this Note by 3%, and (b) add any unpaid accrued interest to principal
and such sum will bear interest therefrom until paid at the rate
provided in this Note (including any increased rate). The interest rate
will not exceed the maximum rate permitted by applicable law.
9. 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 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.
10. 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;
and
(c) 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.
11. Upon an Event of Default, 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, except those 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.
12. 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.
13. 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
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NOTE OR ANY 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
EQUITY UNDERWRITING GROUP, INC.
BY: /s/ Xxxx X. Xxxxx
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TITLE: President
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EQUITY INSURANCE MANAGERS, INC.
BY: /s/ Xxxx X. Xxxxx
---------------------------------
TITLE: President
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