MASTER NOTE
UMB BANK, N.A.
1010 GRAND AVE, KANSAS CITY, MO 64106
Loan Number:0015644 TST Date: NOVEMBER 1, 1996 AMOUNT: $5,500,000.00
FOR VALUE RECEIVED the undersigned (the "undersigned"
means each maker and each endorser, and if more than one,
each shall be jointly and severally liable hereunder)
promises to pay to the order of UMB BANK, N.A., (hereinafter
"Bank") at its main office or at such other place as the
holder hereof may from time to time designate in writing, on
MAY 1, 1997, the principal sum of FIVE MILLION FIVE HUNDRED
THOUSAND AND NO/100 Dollars ($5,500,000.00), or such other
lessor amount as shall be noted as the Unpaid Principal
Balance on the Schedule of Disbursements and Payments of
Principal included herein or attached hereto pursuant to the
authority set forth herein, together with interest on the
unpaid principal balance hereof from time to time
outstanding from date(s) of disbursement(s) until Maturity
(as herein defined) at the rate (the "Loan Interest Rate")
indicated below:
X Periodic Variable Rate. From the date hereof until
the first Adjustment Date (as herein defined) the Loan
Interest Rate shall be EIGHT AND 250/1000 percent per annum.
On each Adjustment Date hereafter, the Loan Interest Rate
shall be adjusted to a rate equal to NO/1000 percentage
points above the Index Rate (as herein defined) in effect as
of such date. The term "Adjustment Date" shall mean
FEBRUARY 1, 1997, and the 1ST day of each QUARTER
thereafter.
The Bank's Index Rate for this Note is defined as: UMB
BANK,N.A. INDEX RATE
Accrued interest shall be payable Monthly. The term
"Maturity shall mean MAY 1, 1997, or any earlier date on
which payment hereunder is due pursuant to any demand or
acceleration rights provided in this Note.
The term "Index Rate", if applicable to this Note, shall
mean that rate of interest per annum determined from time to
time by Bank as its base or index rate for loans to
commercial borrowers. Such base or index rate does not
necessarily reflect the rate that Bank charges its best or
most creditworthy customers. If the Bank is precluded by
law or otherwise from using the above base or index rate,
the term "Index Rate" shall mean that substitute index rate
selected by Bank in place of its base or index rate, which
substitute index rate shall be comparable to Bank's base or
index rate provided for herein.
Interest hereunder shall be computed on the basis of
days elapsed and assuming a 360-day year. Each payment
received shall be applied first to accrued interest, and
then to a reduction of the principal sum and any expense or
other sums owed under this Note, or in any other order as
determined by Bank in Bank's sole discretion and as
permitted by law. Any sum remaining unpaid after Maturity
shall thereafter bear interest at a rate (the "Default
Interest Rate") which shall be at all times TWO AND NO/1000
percentage points in excess of the Loan Interest Rate
(adjusted, if applicable, as provided above) that would have
been applicable but for such Maturity. If not paid at
Maturity, interest thereafter shall be compounded monthly.
The privilege is hereby reserved to prepay without
penalty all or any part of the outstanding amount due
hereunder at any time prior to Maturity. If at any time
prior to Maturity the outstanding principal balance due
hereunder is less than the face amount of this Note, the
undersigned, or any of them, may from time to time until
Maturity request, and Bank may in its sole discretion make,
further disbursements hereunder which shall be evidenced by
this Note; provided, however, the aggregate amount of all
principal amounts outstanding hereunder shall at no time
exceed the face amount of this
Note; and provided further,
that each and every disbursement made under this Note shall
be at the Bank's sole discretion, Bank having made no
commitment to make any such disbursements. The principal
amount due hereunder shall be the last amount stated to be
the Unpaid Principal Balance on the Schedule of
Disbursements and Payments of Principal, and the undersigned
hereby authorizes any officer of the Bank to make notations
on the Schedule of Disbursements and Payments of Principal
from time to time to evidence payments and disbursements
hereunder. The Bank is hereby directed by the undersigned
to credit all future disbursements, if any, under this Note
to account number 987-072-839-7 carried on the books of Bank
in the name of OTR EXPRESS, INC., and the undersigned agrees
that the Bank or holder hereof may make disbursements, at
its discretion, upon oral or written instructions of any of
the undersigned, or any other person(s) authorized by any of
the undersigned.
Notwithstanding anything contained herein 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 shall be paid,
then the excess shall constitute a payment of, and be
applied to, the principal balance hereof, or at Bank's
option, shall be repaid to the undersigned.
The undersigned warrants and represents that all
proceeds of the loan evidenced by this Note are to be used
solely for business or agricultural purposes, and not for
personal, family or household purposes. The undersigned
agrees that if the proceeds are to be used for agricultural
purposes, such proceeds will be used only for the specific
operating purposes described to Bank by the undersigned, and
not for the acquisition of fixed assets or capital
expenditures. No collateral security securing this Note
will be sold unless Bank is first notified and approves in
writing of such sale.
As security for the payment of all amounts due under
this Note and all renewals and extensions hereof, and for
the payment of all other present or future indebtedness and
obligations to the Bank of any party liable hereon, however
and whenever created, arising or evidenced, direct or
indirect, contingent, secured, unsecured, matured or not yet
due, the undersigned pledges and grants to Bank a lien and
security interest in all indebtedness of Bank to any of the
undersigned, including (without limitation) any moneys,
credit balances or deposits (general or special) due from or
standing on deposit with the Bank, which belongs to, is in
the name of, or is subject to withdrawal by, any party
liable hereon, whether now existing or hereafter arising or
deposited, and in all items, moneys, instruments,
certificates of deposit, securities and other personal
property of or in the name of any of the undersigned now or
hereafter in the possession or control of, or in transit to,
the Bank for any purpose and in any capacity (but excluding
however from the foregoing any accounts or deposits held in
or by any trust qualified under sections 401(a) or 408 of
the Internal Revenue Code of 1986), including all proceeds
and products thereof and all accessions and accruals thereto
and all dividends, rights, payments, shares and property
received in respect thereto, the undersigned further
agreeing that the aforesaid indebtedness (if any) of Bank to
any of the undersigned may, at any time that all or any part
of this Note remains unpaid (whether before or after
Maturity), be held or applied to the payment of this Note by
the holder hereof. Nothing herein shall in any way limit
any of Bank's rights of setoff. This Note may also be
secured by other collateral in which the undersigned or
others may have granted a security interest or lien to Bank,
including, without limitations, the following:
ACCOUNTS RECEIVABLE AS FURTHER DESCRIBED IN SECURITY AGREEMENT DTD 5-1-96.
Bank may retain any and all of the above collateral
security, irrespective of the payment in full of the
indebtedness evidenced by this Note, until all indebtedness
secured thereby
has been repaid and performed in full. It
is intended that the above security interests and liens
secure all of each of the undersigned's existing and future
indebtedness to Bank of all types and nature, including
indebtedness unrelated or dissimilar to the indebtedness
evidenced by this Note. If this Note is secured by a
mortgage or deed of trust, such mortgage or deed of trust is
dated ________ and is a lien on real property located in the
State of ________ and recorded in such state. The
undersigned agrees to give to Bank upon Bank's request, from
time to time, such other and further security as Bank, in
its sole discretion, may deem necessary or appropriate, such
additional security to become collateral security for this
Note under the provisions hereof.
Presentment, demand, notice of nonpayment, dishonor,
protest, notice of protest, notice of dishonor or default,
and any and all lack of diligence and suit are hereby waived
by all parties liable hereon. The undersigned and each
endorser, guarantor, surety or other person who may now or
hereafter be liable for the payment of this Note, by
executing, endorsing, guaranteeing or assuming this Note,
jointly and severally consent and agree to all of the terms
and conditions herein, and without limitation of the
foregoing and without affecting their liabilities hereunder
or under any other document or instrument, agree and consent
without further notice to (i) all renewals, deferrals,
extensions and modifications hereof, (ii) the impairment,
alteration, compromise, acceleration, extension or change in
the time or manner of the payment of any of the
undersigned's indebtedness to Bank, (iii) the impairment,
substitution, exchange or release at any time of all or any
part of any collateral security or any guaranty for this
Note, (iv) the release of, or impairment of the right of
recourse against, any of the undersigned or any endorser,
guarantor, surety or any other person now or hereafter
liable hereon, (v) the substitution of extension or renewal
notes for this Note, and (vi) the modification of any terms
hereof or of any mortgage, deed of trust or other agreement
now or hereafter given in connection with or as security for
this Note.
To the full extent (if any) permitted by applicable law,
the undersigned agrees to pay, and to indemnify Bank from
and against, all costs, charges, expenses, judgements,
fines, penalties and reasonable attorneys' fees incurred by
the holder in: (a) collecting this Note, (b) enforcing
rights with respect to or realizing upon any collateral
security therefor, (c) defending any action brought against
Bank with respect to this Note, any matter relating thereto
or to any relationship or transaction between Bank and any
of the undersigned, or (d) complying with, or failing to
comply with, any Environmental Regulations (as herein
defined) including abatement and cleanup costs. Any sums
paid by the holder for any such expenses shall be
immediately due and payable by the undersigned and shall
bear interest at the rate then applicable to any outstanding
principal hereunder from the date advanced until paid.
The occurrence of any of the following shall constitute
an "Event of Default": (i) default in the payment of any sum
due hereunder, or in the payment or performance of any other
obligation of any of the undersigned to Bank or the
occurrence of any default by any of the undersigned pursuant
to any obligation or undertaking under any security
agreement, assignment, pledge agreement, deed of trust,
mortgage or other instrument or document governing or
relating to the indebtedness evidenced hereby or granting or
providing for a security interest, pledge or other lien as
security for any obligations of any of the undersigned to
Bank (including, but not limited to, the indebtedness
evidenced by this Note); (ii) the occurrence of any adverse
development with respect to the financial condition of any
of the undersigned or any other person or
entity("Guarantor") who is directly or indirectly liable for
any of the indebtedness evidenced by this Note, which
materially affects the ability of any of the undersigned or
such Guarantor to perform their respective obligations to
Bank; (iii) any material representation or warranty made by
any of the undersigned or any Guarantor to Bank being
untrue, inaccurate or incomplete as of the day it was made
or given; (iv) the death, dissolution or termination of
existence of any of the undersigned or any Guarantor or the
failure of any of the undersigned or any Guarantor to pay
debts as they mature, the appointment of
a receiver for any
part of the property of any of the undersigned or any
Guarantor, an assignment for the benefit of creditors by any
of the undersigned or any Guarantor, or the commencement of
any proceedings under bankruptcy or insolvency laws by or
against any of the undersigned or any Guarantor; *(v) a
levy, attachment, restraint or other legal process filed
against any of the undersigned or any Guarantor or any
collateral security securing this Note; (vi) as a result of
its reasonable determination that any collateral security
given for this Note is impaired or has a value insufficient
to adequately secure the obligations of the undersigned
secured thereby, Bank has requested additional collateral
and such additional collateral has not been promptly
provided by the undersigned or a Guarantor, of a type and in
the manner satisfactory to Bank; (vii) that subsequent to
the date of this Note (or any predecessor note(s) for which
this Note constitutes a renewal, extension or refinancing)
there has occurred a "change of control" in any of the
undersigned that is a corporation or partnership (for
purposes of this Note, a "change of control" is deemed to
have occurred upon the transfer, directly or indirectly, in
one or more transactions, of any general partnership
interest or of n/a % or more of any class of voting stock of
a corporation or the right to vote or control such stock or
partnership interest, or if the percentage of a
corporation's issued and outstanding shares that are held by
any one shareholder changes (for any reason) by more that
n/a percentage points) or (viii) Bank has deemed itself
insecure with respect to the undersigned's indebtedness
under this Note or with respect to any of the undersigned's
other obligations to Bank.
Upon the occurrence of any Event of Default, Bank may,
at its sole option and without limitation on the demand
feature of this Note and without notice or demand: (A)
declare the entire principal sum owed hereunder and all
other indebtedness of the undersigned to Bank, immediately
due and payable; (B) appropriate and apply toward the
payment of the undersigned's obligations to Bank (including,
but not limited to, the indebtedness evidenced by this
Note), in such order of application as it elects, any or all
balances, credits, deposits,
*LIMITED TO LAWSUITS OF $2.5 MILLION OR GREATER
accounts or moneys of or in the name of any of the
undersigned then or thereafter with Bank in any capacity;
and (C) exercise, in addition to all other rights hereunder
or under any other applicable agreements and
instruments, its rights under applicable law, including
those of a secured party under the Uniform Commercial Code
of the State of Missouri. Upon the occurrence of an Event
of Default described in clause (iv) of the immediately
preceding paragraph, this Note shall automatically and
immediately become due and payable without notice or demand.
The failure of the Bank to exercise any option or right or
remedy shall not preclude Bank from exercising any other
right or remedy Bank may be entitled to exercise upon the
occurrence of any Event of Default hereunder, and shall not
constitute a waiver of such option or any other right at any
time thereafter. Bank's acceptance of a partial payment of
any sum due hereunder after any Event of Default or after
Maturity, shall not rescind, waive or otherwise affect any
such Event of Default or Maturity or any acceleration or any
other exercise by Bank of any of its rights hereunder or
under any other documents or applicable law. The
undersigned agrees that time is of the essence. If any
provision of this Note violates the law or is unenforceable,
the other provisions of this Note shall remain valid.
The undersigned shall furnish to Bank such information
and reports regarding any collateral security, the
undersigned's financial condition and operations, and such
other matters as Bank may from time to time reasonably
request. Specifically, and without limitation on the
foregoing, the undersigned shall provide to Bank upon
reasonable request, current financial statement for each of
the undersigned and each Guarantor including, but not
limited to, balance sheets and profit and loss statements.
The undersigned shall comply with all federal, state and
local laws, statutes, rules, regulations, standards,
ordinances and orders pertaining to the environment,
hazardous substances, pollutants or contaminants
("Environmental Regulations") and shall immediately deliver
to Bank copies of any notice or other communication received
by any of the undersigned alleging a violation of, or a
failure to maintain any permit or license required by, any
Environmental Regulations. The undersigned covenants,
represents and warrants to Bank that any property now or
hereafter or previously owned or operated by any of the
undersigned, has not been, and will not be, used by any of
the undersigned, or to the best knowledge and belief of each
of the undersigned, by any prior owner or operator, to
refine, produce, store, handle, process or transport any
hazardous substance, pollutant or contaminant except in full
compliance with all applicable Environmental Regulations,
and that any substance disposed of off-site by any of the
undersigned have been, and will be, disposed of in
accordance with all applicable Environmental Regulations.
The loan evidenced hereby has been made, and this Note has
been delivered, at
Bank's office at the address indicated above, and such loan,
this Note and the rights, obligations and remedies of Bank
and the undersigned shall be governed by and construed in
accordance with the laws of the State of Missouri. All
obligations of the undersigned, and the rights, powers and
remedies of Bank, expressed herein shall be in addition to,
and not in limitation of, those provided by law or in any
written agreements or instruments (other than this Note)
relating to any obligation of any of the undersigned to
Bank, the loan evidenced by this Note or any collateral
security.
It is the intent hereof that each of the undersigned (if
more than one) remain liable as principal until the full
amount of all indebtedness evidenced by this Note has been
paid, notwithstanding any act, omission or event that might
otherwise operate as a legal or equitable discharge or
defense with respect to any of the undersigned.
No setoff or counterclaim of any kind claimed by any
person liable under this Note shall stand as a defense to
the enforcement of this Note against any such person, it
being agreed that any such setoff or counterclaim must be
maintained by separate suit.
The undersigned and Bank hereby agree to trial
by court and irrevocably waive jury trial in any
action or proceeding (including but not limited to
any counterclaim) arising out of or in any way
relating to or connected to this Note, any
relationship or transaction between any of the
undersigned and Bank, the origination,
administration or enforcement of the indebtedness
evidenced or secured by this Note, or any other
matter.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR TO FORBEAR FROM ENFORCING
REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER(S) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS
WE REACH COVERING SUCH MATTERS ARE CONTAINED IN
THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE
MAY LATER AGREE IN WRITING TO MODIFY IT.
Address: 804 N. MEADOWBROOK DRIVE Borrower: OTR EXPRESS,
INC.
OLATHE, KS 66063-0819 By: /S/WILLIAM P. WARD
Title: Pres.
Borrower:
By: /S/ GARY J. KLUSMAN
Title: Ex. V. P.