EXHIBIT 10.32
AMENDED AND RESTATED REVOLVING CREDIT NOTE
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("Note")
EQUITY INSURANCE MANAGERS, INC.
a Kentucky corporation
0000 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
$400,000.00
DATE: July 23, 1998
Executed at Lexington, Kentucky
1. FOR VALUE RECEIVED, EQUITY INSURANCE MANAGERS, INC.
("Borrower"), promises to pay to the order of BANK ONE, KENTUCKY, NA, a
national banking association (the "Bank"), the principal sum of FOUR
HUNDRED THOUSAND DOLLARS ($400,000.00) 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. This Note is an amendment and restatement of the Note dated
December 30, 1997. 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.
3. Borrower shall repay this Note by paying all accrued
interest monthly beginning on June 30, 1998 and continuing on the
thirtieth day of each month until July 30, 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), Louisville, Kentucky, Eastern time, on the date when
due, in lawful money of the United States of America, to Bank at
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, 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 included in the computation of
the payment of interest.
4. If any amount due hereunder is past due for more than
fifteen (15) days (whether by lapse of time or by reason of acceleration
under the provisions hereof), or 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 and shall continue at that rate as long
as any amount due is more than fifteen (15) days late; 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. Any payment on this Note that is overdue for
more than fifteen (15) days from its due date shall be increased by an
amount equal to the lesser of $250.00 or five percent (5%) of the
overdue payment.
5. Bank and Xxxxxxxx agree that upon the written demand of
either party, whether made before or after the institution of any legal
proceedings, but prior to the rendering of any judgment in that
proceeding, all disputes, claims and contract disputes and tort claims,
shall be resolved by binding arbitration pursuant to the Commercial
Rules of the American Arbitration Association. Any arbitration
proceeding held pursuant to this arbitration provision shall be
conducted in the city nearest the Borrower's address having an AAA
regional office, or at any other place selected by mutual agreement of
the parties. No act to take or dispose of any Collateral shall
constitute a waiver of this arbitration agreement or be prohibited by
this arbitration agreement. This arbitration provision shall not limit
the right of either party during any dispute, claim or controversy to
seek, use and employ ancillary, or preliminary rights and/or remedies,
judicial or otherwise, for the purposes of realizing upon, preserving,
protecting, foreclosing upon or proceeding under forcible entry and
detainer for possession of, any real or personal property, and any such
action shall not be deemed an election of remedies. Such remedies
include, without limitation, obtaining injunctive relief or a temporary
restraining order, invoking power of sale under any deed of trust or
mortgage, obtaining a writ of attachment or imposition of a
receivership, or exercising any rights relating to personal property
including taking or disposing of such property with or without judicial
process pursuant to Article 9 of the Uniform Commercial Code or when
applicable, a judgment by confession of judgment. Any disputes, claims
or controversies concerning the lawfulness or reasonableness of an act,
or exercise of any right or remedy concerning any Collateral, including
any claim to rescind, reform or otherwise modify any agreement relating
to the Collateral, shall also be arbitrated, provided, however, that no
arbitrator shall have the right or the power to enjoin or restrain any
act of either party. Judgment upon any award rendered by any arbitrator
may be entered in any court having jurisdiction. Nothing in this
arbitration provision shall preclude either party from seeking equitable
relief from a court of competent jurisdiction. The status of
limitations, estoppel, waiver, laches and similar doctrines which would
otherwise be applicable in an action brought by a party shall be
applicable in any arbitration proceeding, and the commencement of an
arbitration proceeding shall be deemed the commencement of any action
for these purposes. The Federal Arbitration Act (Title 9 of the United
States Code) shall apply to the construction, interpretation, and
enforcement of this arbitration provision.
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6. Borrower will be in default if any of the following happens:
(a) Borrower fails to make any payment or principal or interest when due
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, whether now or hereafter
existing, executed in connection with this Note (the Note and all such
other instruments, agreements, and documents shall be collectively known
herein as the "Related Documents"); (c) any representation or statement
made or furnished to Lender herein, in any of the Related Documents or
in connection with any of the foregoing is false or misleading in any
material respect; (d) Xxxxxxxx dissolves (regardless of whether election
to continue is made), any member withdraws from Borrower, any member
dies, or any of the members or Borrower or any other party liable for
the payment of this Note, whether as maker, endorser, guarantor, surety
or otherwise, 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
Related 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.
7. 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. 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 3.00 percentage points, 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.
8. 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.
9. 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;
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(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 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;
(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.
10. 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,
whether 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.
11. 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.
12. 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 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.
13. 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
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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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
EQUITY INSURANCE MANAGERS, INC.
BY: /s/ X. X. Xxxxx
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TITLE: President
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