Exhibit 10(d)
BORROWER PROMISSORY NOTE
$28,373,000 April 3, 2000
ASSET HOLDINGS III, L.P., an Ohio limited partnership (the "Borrower"),
for value received, promises to pay to CORNERSTONE FUNDING CORPORATION I, a
Delaware corporation (the "Issuer"), the sum of TWENTY-EIGHT MILLION THREE
HUNDRED SEVENTY-THREE THOUSAND and 00/100 DOLLARS ($28,373,000) and to pay (i)
interest on the unpaid balance of such principal sum from and after the date of
this Borrower Promissory Note at the interest rate or interest rates borne by
the Issuer's Floating Rate Notes, Series 2000A in the aggregate principal amount
of $28,373,000 (the "Notes") and (ii) interest on overdue principal, and to the
extent permitted by law, on overdue interest, at the interest rate provided
under the terms of the Notes.
This Borrower Promissory Note (the "Borrower Note") has been executed
and delivered by the Borrower pursuant to a certain Participation Agreement (the
"Agreement"), dated as of March 31, 2000, among Borrower, ADESA Corporation, an
Indiana corporation (the "Lessee"), SunTrust Bank, a banking corporation
organized and existing under the laws of the State of Georgia (the "Credit
Bank"), and the Issuer. Terms used but not defined herein shall have the
meanings ascribed to such terms in the Agreement and the Note Indenture.
Pursuant to the Agreement, the Issuer has made a loan (the "Loan") to
the Borrower of the proceeds from the issuance and sale of the Notes, to be
applied to assist the Borrower in refinancing certain indebtedness incurred by
the Borrower to pay the cost of acquiring certain real property (the "Leased
Property") which will be owned by the Borrower and leased to the Lessee, and to
pay additional Property Costs related to the transactions contemplated by the
Agreement.
The Borrower has agreed, and hereby does agree, to repay such loan by
making payments hereunder ("Loan Payments") at the times and in the amounts set
forth in this Borrower Note. The Notes have been issued, concurrently with the
execution and delivery of this Borrower Note, pursuant to, and are secured by,
the Master Trust Indenture (the "Master Indenture") dated as of March 31, 2000,
between the Issuer and the Note Trustee as supplemented by the First
Supplemental Series Indenture between the Issuer and the Note Trustee dated as
of March 31, 2000 (the "Supplemental Indenture" and, together with the Master
Indenture, the "Indenture").
To provide funds to pay the Debt Service on the Notes as and when due,
or to reimburse the Credit Bank for Drawings under the Letter of Credit used to
make such payments, the Borrower hereby agrees to and shall make Loan Payments
as follows: on each Interest Payment Date the amount equal to interest due on
the Notes on such Interest Payment Date, and on each Interest Payment Date on
which principal of the Notes shall be due and payable pursuant to the redemption
provisions of the Note Indenture, or upon maturity of the Notes, an amount equal
to such principal due and payable on such date. In addition, to provide funds to
pay the Debt Service on the Notes as and when due at any other time, the
Borrower hereby agrees to and shall make Loan Payments on any other date on
which any Debt Service on the Notes shall be due and
payable, whether upon acceleration, call for redemption or otherwise, in the
amount of the Debt Service so due and payable.
If payment or provision for payment in accordance with the Indenture is
made in respect of the Debt Service on the Notes from moneys other than Loan
Payments, this Note shall be deemed paid to the extent such payments or
provisions for payment of Debt Service have been made. The Borrower shall
receive a credit against its obligation to make Loan Payments hereunder to the
extent of the moneys delivered to the Note Trustee under and pursuant to the
Letter of Credit for the payment of Debt Service and any other amounts on
deposit in the Note Fund and available to pay Debt Service on the Notes pursuant
to the Indenture. Subject to the foregoing, all Loan Payments shall be in the
full amount required hereunder.
All Loan Payments shall be payable in lawful money of the United States
of America, in immediately available funds, and shall be made to the Note
Trustee at its Operations Office (as defined in the Indenture) for the account
of the Issuer, deposited in the Note Fund and used as provided in the Indenture.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest, and notice of
dishonor, notice of intention to accelerate, notice of acceleration, notice of
the existence, creation or nonpayment of all or any of the Loan Advances and all
other notices whatsoever.
ALL PAYMENTS TO BE MADE BY THE BORROWER IN RESPECT OF THE LOAN AND THIS
BORROWER NOTE SHALL BE MADE ONLY FROM CERTAIN PAYMENTS RECEIVED UNDER THE LEASE
AND CERTAIN PROCEEDS OF THE LEASED PROPERTY AND ONLY TO THE EXTENT THAT THE
CREDIT BANK SHALL HAVE RECEIVED SUFFICIENT PAYMENTS FROM SUCH SOURCES TO MAKE
PAYMENTS IN RESPECT OF THE LETTER OF CREDIT LIABILITIES IN ACCORDANCE WITH AND
SUBJECT TO THE PRIORITIES SET FORTH IN ARTICLE III OF THE REIMBURSEMENT
AGREEMENT. THE ISSUER, BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL LOOK SOLELY
TO SUCH SOURCES OF PAYMENT TO THE EXTENT AVAILABLE FOR DISTRIBUTION TO THE
ISSUER OR THE NOTE TRUSTEE AS PROVIDED IN THE REIMBURSEMENT AGREEMENT AND THAT
NEITHER THE BORROWER NOR ITS RESPECTIVE PARTNERS, NOR ANY OF THEIR RESPECTIVE
ORGANIZERS, INCORPORATORS, LIMITED OR GENERAL PARTNERS, MEMBERS, STOCKHOLDERS,
DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "BORROWER
PARTIES") SHALL BE PERSONALLY LIABLE TO THE ISSUER OR THE CREDIT BANK FOR ANY
AMOUNT PAYABLE HEREUNDER OR UNDER THE REIMBURSEMENT AGREEMENT. NOTHING IN THIS
BORROWER NOTE, THE REIMBURSEMENT AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT SHALL
BE CONSTRUED AS CREATING ANY LIABILITY (OTHER THAN FOR WILLFUL MISCONDUCT) OF
THE BORROWER TO PAY ANY SUM OR TO PERFORM ANY COVENANT, EITHER EXPRESS OR
IMPLIED, IN THIS BORROWER NOTE, THE REIMBURSEMENT AGREEMENT OR ANY OTHER
OPERATIVE DOCUMENT (ALL SUCH LIABILITY, IF ANY, BEING EXPRESSLY WAIVED BY THE
ISSUER BY ITS ACCEPTANCE HEREOF AND BY THE CREDIT BANK BY ITS ACCEPTANCE OF THE
ASSIGNMENT HEREOF) AND THAT THE ISSUER, THE CREDIT BANK AND EACH OTHER HOLDER OF
THIS BORROWER NOTE, BY ITS ACCEPTANCE HEREOF, ON BEHALF OF ITSELF AND ITS
SUCCESSORS AND ASSIGNS, AGREES IN THE CASE OF ANY LIABILITY OF THE BORROWER
HEREUNDER OR THEREUNDER (EXCEPT FOR SUCH LIABILITY ATTRIBUTABLE TO BORROWER'S
WILLFUL MISCONDUCT) THAT IT WILL LOOK SOLELY TO THOSE CERTAIN PAYMENTS RECEIVED
UNDER THE LEASE AND THOSE CERTAIN PROCEEDS OF THE LEASED PROPERTY AS PROVIDED IN
ARTICLE III OF THE REIMBURSEMENT AGREEMENT; PROVIDED, HOWEVER, THAT THE BORROWER
(BUT NOT ITS PARTNERS, THE ISSUER OR CORNERSTONE CAPITAL CORPORATION, OR ANY OF
THEIR RESPECTIVE ORGANIZERS,
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INCORPORATORS, STOCKHOLDERS, PARTNERS, MEMBERS, MANAGERS, DIRECTORS, EMPLOYEES,
OFFICERS AND AGENTS) SHALL IN ANY EVENT BE LIABLE WITH RESPECT TO (I) THE
REMOVAL OF BORROWER'S LIENS OR LIABILITIES INVOLVING ITS WILLFUL MISCONDUCT OR
(II) FAILURE TO TURN OVER PAYMENTS THE BORROWER HAS RECEIVED IN ACCORDANCE WITH
ARTICLE III OF THE REIMBURSEMENT AGREEMENT; AND PROVIDED, FURTHER THAT THE
FOREGOING EXCULPATION OF THE BORROWER AND THE BORROWER PARTIES SHALL NOT BE
DEEMED TO BE EXCULPATIONS OF THE LESSEE, THE GUARANTOR OR ANY OTHER PERSON.
Any provision to the contrary contained in this Borrower Note or in any
of the other Operative Documents notwithstanding, it is expressly provided that
in no case or event shall the aggregate of (i) all Interest payable by the
Lessor and (ii) the aggregate of any other amounts accrued or paid pursuant to
this Borrower Note or any of the other Operative Documents, which under
applicable laws are or may be deemed to constitute interest, ever exceed the
maximum rate of interest which could lawfully be contracted for, charged or
received. In this connection, it is expressly stipulated and agreed that it is
the intent of the Borrower and the Issuer to contract in strict compliance with
the applicable usury laws of the State and of the United States (whichever
permit the higher rate of interest) from time to time in effect. In furtherance
thereof, none of the terms of this Borrower Note or any of the other Operative
Documents shall ever be construed to create a contract to pay, as consideration
for the use, forbearance or detention of money, interest at a rate in excess of
the maximum contract interest rate permitted to be contracted for, charged or
received by the applicable laws of the United States or the State (whichever
permit the higher rate of interest). The Borrower and any other parties now or
hereafter becoming liable for payment of any indebtedness under this Borrower
Note or any other Operative Documents shall never be liable for interest in
excess of the maximum rate that may be lawfully contracted for or charged under
the laws of the State and of the United States (whichever permit the higher rate
of interest). If under any circumstances the aggregate amounts paid include
amounts which by law are deemed interest which would exceed the maximum amount
of interest which could lawfully have been contracted for, charged or received,
the parties stipulate that such amounts will be deemed to have been paid as a
result of an error on the part of the parties, and the party receiving such
excess payment shall promptly, upon discovery of such error or upon notice
thereof from the party making such payment, refund the amount of such excess or
at the option of the Issuer or then holder of this Borrower Note, credit such
excess against any unpaid principal balance owing. To the maximum extent
permitted by applicable law, all amounts contracted for, charged or received for
the use, forbearance, or detention of money shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
term of this Borrower Note.
This Borrower Note shall be governed by and construed in accordance
with the laws of the State of Ohio, without regard to conflicts of law
principles.
This Borrower Note is subject to optional, extraordinary optional and
mandatory prepayment, in whole or in part, at the times and upon the terms and
conditions for optional, extraordinary optional and mandatory redemption of the
Notes as set forth in the Indenture. Any optional or extraordinary optional
prepayment is also subject to satisfaction, upon the same terms, of any
applicable notice, deposit or other requirements which apply to the optional or
extraordinary optional redemption of the Notes as set forth in the Indenture.
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IN WITNESS WHEREOF, the Borrower has signed this Borrower Note as of
the date first above written.
ASSET HOLDINGS III, L.P., an Ohio
limited partnership
By: Realty Facility Holdings I, L.L.C.,
its General Partner
By: /s/ Robert F. Gage
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Robert F. Gage, President
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