Exhibit 10.9
FIRST AMENDMENT TO PROMISSORY NOTE (LINE OF CREDIT)
WHEREAS, Obsidian Enterprises, Inc., a Delaware corporation, executed as
"Maker", a certain Promissory Note dated January 9, 2002 in favor of Fair
Holdings, Inc, an Ohio corporation, (the "Note"), as "Lender", in the principal
amount of Three Million and 00/100 Dollars with a Final Maturity Date of January
9, 2005 (a true and accurate copy of which is attached hereto as Exhibit "A").
WHEREAS, Obsidian Enterprises, Inc. and Fair Holdings, Inc. have agreed to
amend the Note so that the principal amount of the Note shall be increased to
the sum of Five Million and 00/100 Dollars ($5,000,000.00).
NOW THEREFORE, inconsideration of the recitals set forth above and the
covenants, conditions and agreements contained herein, the receipt and
sufficiency of which are hereby acknowledged, the Parties consent and agree as
follows:
1. The principal balance of the Note is hereby increased to Five Million
and 00/100 Dollars ($5,000,000.00). Except for the amendment to the
principal balance, all other terms and conditions of the Note remain
in full force and effect as if fully stated herein.
IN WITNESS WHEREOF, the parties have caused this First Amendment to
Promissory Note to be executed this 2nd day of January, 2003.
Obsidian Enterprises, Inc. Fair Holdings, Inc.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------- ----------------------------
Xxxxxxx X. Xxxxxx, Chairman Xxxxxxx X. Xxxxxx, Chairman
Exhibit A
PROMISSORY NOTE (Line of Credit)
$3,000,000.00
Indianapolis, Indiana
Dated: January 9, 2002
Final Maturity Date: January 9, 2005
On or before January 9, 2005 ("Final Maturity"), OBSIDIAN ENTERPRISES,
INC., a Delaware corporation (the "Maker") promises to pay to the order of FAIR
HOLDINGS, INC., an Ohio corporation, (the "Lender") at his principal office at
000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx, the principal sum of
THREE MILLION AND NO/100 DOLLARS ($3,000,000.00) or so much of the principal
amount of the Loan represented by this Note as may be disbursed by the Lender
under the terms described below, and to pay interest on the unpaid principal
balance outstanding from time to time as provided herein.
This Note evidences indebtedness (the "Loan") incurred or to be incurred by
the Maker under a revolving line of credit extended to the Maker by the Lender
as provided herein. The proceeds of the Loan may be advanced, repaid and
re-advanced until Final Maturity Date. The principal amount of the Loan
outstanding from time to time shall be determined by reference to the books and
records of the Lender and all payments by the Maker on account of the Loan shall
be recorded. Such books and records shall be deemed prima facia to be correct as
to such matters. From this date and until the Final Maturity, Lender agrees to
make advances from time to time to the Maker of amounts not exceeding in the
aggregate at any time outstanding the amount of Three Million and no/100 Dollars
($3,000,000.00), provided that all of the conditions of lending stated herein
have been fulfilled at the time of each advance and no default exists.
Each of the following shall constitute an Event of Default under this Note:
(a) Nonpayment of Loan: Default in the payment when due of any amount payable
under the terms of this Note, or otherwise payable to the Lender or any
holder of this Note under the terms of this Note;
(b) Bankruptcy, Insolvency, etc.: Maker admitting in writing the inability to
pay his debts as they mature or an administrative or judicial order or
determination of insolvency being entered against Maker; or Maker making a
general assignment for the benefit of creditors; or, in the absence of such
application, consent or acquiescence, a trustee or receiver being appointed
for Maker or a substantial part of his property and not being discharged
within 60 days; or any bankruptcy, reorganization, debt arrangement, or
other proceeding under the bankruptcy or insolvency law, or any dissolution
or liquidation proceeding being instituted by or against Maker.
Interest on the unpaid principal balance of the Loan outstanding from time
to time prior to Final Maturity will accrue at a per annum rate equal to ten
percent (10%). Interest shall begin to accrue on the date of this Note and shall
be due and payable on the Final Maturity. Interest will be calculated on the
basis that an entire year's interest is earned in 360 days.
Upon an Event of Default, including failure to pay upon Final Maturity,
Lender at his option may also, if permitted under applicable law, do one or both
of the following: (a) increase the applicable interest rate on this Note two
percent (2%) and (b) add any unpaid accrued interest to the principal and such
sum will bear interest thereon until paid at the rate provided in this Note. The
interest rate will not exceed the maximum rate permitted by applicable law.
The entire outstanding principal balance of this Note shall be due and
payable, together with accrued interest, at Final Maturity. Principal may be
prepaid at anytime without penalty.
If any installment of interest due under the terms of this Note is not paid
when due, then the Lender or any subsequent holder of this Note may, at its
option and without notice, declare the entire principal amount of the Note and
all accrued interest immediately due and payable.
If payment is 10 days or more late, Maker will be charged 5% of the
regularly scheduled payment. Each late payment fee assessed shall be due and
payable on the earlier of the next regularly scheduled interest payment date or
the maturity of this Note. Waiver by the Lender of any late payment fee
assessed, or the failure of the Lender in any instance to assess a late payment
fee shall not be construed as a waiver by the Lender of its right to assess late
payment fees thereafter.
Unless otherwise agreed to, in writing, or otherwise required by applicable
law, payments will be applied first to accrued, unpaid interest, then to
principal, and any remaining amount to any unpaid collection costs, late charges
and other charges, provided, however, upon delinquency or other default, Lender
reserves the right to apply payment among principal, interest, late charges,
collection costs and other charges at its discretion. All prepayments shall be
applied to the indebtedness owing hereunder in such order and manner as Lender
may from time to time determine in his sole discretion.
The Maker and any endorsers severally waive demand, presentment for payment
and notice of nonpayment of this Note, and each of them consents to any renewals
or extensions of the time of payment of this Note without notice.
All amounts payable under the terms of this Note shall be payable with
expenses of collection, including attorneys' fees, and without relief from
valuation and appraisement laws.
This Note is made under and will be governed in all cases by the
substantive laws of the State of Indiana notwithstanding the fact that Indiana
conflicts of law rules might otherwise require the substantive rules of law of
another jurisdiction to apply.
THE MAKER AND LENDER (BY ACCEPTANCE OF THIS NOTE) HEREBY VOLUNTARILY,
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTCIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON A CONTRACT, TORT OR
OTHERWISE) BETWEEN MAKER AND LENDER ARISING OUT OF OR ANY WAY RELATED TO THIS
NOTE OR ANY RRELATIONSHIP BETWEEN LENDER AND MAKER. THIS PROVISION IS A MATERIAL
INDUCMENT TO LENDER TO PROVIDE THE FINANCING DESCRIBED HEREIN.
"MAKER"
OBSIDIAN ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx
Its: Chief Executive Officer
