EXHIBIT 10.35
TERM PROMISSORY NOTE
South Bend, Indiana
June 5, 2000
$5,000,000.0
For value received, the undersigned ("Borrower"), promises to pay to the
order of /1st/ Source Bank ("1/st/ Source") at any of its offices the principal
sum of Five Million and no/100 Dollars ($5,000,000.00).
With interest thereon prior to maturity at the rate of:
Nine and one-fourth percent (9.25%) per year. Borrower may prepay the unpaid
principal balance of this Note, but any prepayment, in whole or in part, shall
be subject to a premium of three percent (3%) of the amount prepaid during the
first and second years of the original term of this Note, two percent (2%) if
prepaid during the third and fourth years of the original term of this Note, and
one percent (1%) if prepaid during the fifth year of the original term of this
Note.
Principal and interest shall be paid as follows:
Equal monthly installments of principal and interest in the amount of $64,017.00
commencing on the 5/th/ day of July, 2000 and on the same day of each month
thereafter until June 5, 2005, ("Termination Date") when all unpaid sums of
principal and interest shall be due and payable.
Interest shall be computed on the basis of a three hundred sixty (360) day
year, and accrue for each day any principal sum remains unpaid. 1/st/ Source
will charge, and Borrower agrees to pay, a late charge of two percent (2%) per
month on any installment of principal and interest not paid within ten (10) days
of the due date. After maturity, whether by acceleration or otherwise, interest
will be payable at a rate which is three percent (3%) per year in excess of the
interest rate otherwise payable hereon.
Upon the occurrence of any event of default (as defined below), all of the
indebtedness evidenced hereby and remaining unpaid shall, at the option of 1/st/
Source and without further demand or notice, become immediately due and payable
with reasonable attorneys' fees incurred by 1/st/ Source in enforcing the Note.
As used herein each of the following shall constitute an event of default:
a) Borrower defaults in the payment of all or part of any installment of
interest, principal, or premium (if any) hereunder when the same
becomes due (whether by acceleration or otherwise);
b) Any representation or warranty made in any of the documents executed
by Borrower and delivered to 1/st/ Source, in connection with this
Note or that Purchase Money Real Estate Mortgage and Security
Agreement ("Loan Documents"), or otherwise in writing furnished in
connection therewith shall be false or inaccurate in any material
respect when made;
c) Any one or more of the covenants or agreements contained in any of the
Loan Documents is violated, or any other default occurs under any of
the Loan Documents;
d) Borrower dissolves, becomes insolvent, makes an assignment for the
benefit of creditors, applies to any court for the appointment of a
trustee or receiver of any substantial part of its assets or commences
any proceedings related to itself under any bankruptcy, receivership,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or other liquidation law of any jurisdiction, or any
application is filed or proceedings are commenced as described above
against Borrower or Borrower indicates its approval, consent or
acquiescence thereto, or an order is entered appointing such a trustee
or receiver or adjudicating Borrower as a bankrupt or an insolvent or
approving the petition in any such proceedings and such order remains
in effect for thirty (30) days.
e) Any order is entered in any proceedings against Borrower to create a
dissolution or split-up thereof and such order remains in effect for
thirty (30) days; or
f) Any enforcement action or other proceeding is commenced or notice is
received by a Borrower in any way relating to the environment or
discharges into the environment, or any claim is instituted against
the Borrower in the nature of torts in any way relating to the
environment or discharges into the environment, including but not
limited to toxic torts, fear of illness or other health related claim
or claim relating to potentially responsible party status at any
disposal, storage, recycling or reclamation site to which soils or
other materials were taken during or after operations conducted on the
property which constitutes Collateral, or any order in any way
relating to the environment or discharges into the environment is
enters against the Borrower or any of its Property by any
administrative agency or court. This subsection shall only apply to
any notice given or any enforcement action initiated by any regulatory
or government agency, or citizen , for actual violations of
environmental statures, ordinances, regulations or permit conditions
in which the penalty and cost of any remedial activity, arising from
an entry of judgment against or settlement by Borrower would have a
material adverse effect on the ability of Borrower to meet its
obligations under the Loan Documents.
Borrower and, sureties, and endorsers severally waive demand, presentment for
payment, notice of dishonor, notice of nonpayment, protest, notice of protest,
and diligence by 1/st/ Source in collection and bringing suit on this Note and
all benefits of valuation and appraisement laws and expressly agree that this
Note may be extended from time to time without notice with full reservation of
1/st/ Source's rights, and without in any way affecting the liability of the
Borrower, sureties and endorsers hereunder.
Borrower hereby covenants and agrees that it:
a) Shall not allow to occur any material adverse change in the nature of
Borrower's business as carried on as of the date of this Note or in
the financial condition or prospects of Borrower, which would have a
material adverse effect on the ability of Borrower to meet its
obligations under the Loan Documents;
b) Shall maintain accurate and proper books and records; shall furnish to
1/st/ Source within ninety (90) days after the end of each fiscal year
the financial statement of Borrower prepared in accordance with
generally accepted accounting principals consistent with prior years
unless specifically noted thereon, and furnish to 1/st/ Source within
sixty (60) days after the end of each calendar period interim
financial statements, and such other financial information as is
reasonably requested from time to time from 1/st/ Source, for the
periods requested by 1/st/ Source, all prepared and signed by the
chief financial officer of Borrower in accordance with generally
accepted accounting principles consistent with prior periods unless
specifically noted thereon; and shall permit periodic audits or other
examinations of its books, records, accounts and properties by 1/st/
Source and 1/st/ Source's representatives and submit such additional
information as 1/st/ source may reasonably request; and
c) Shall comply with all laws and regulations of any authority applicable
to Borrower's business, including without limitation those relating to
taxes, the environment and to occupational safety and health,
provided, however, that Borrower shall not be in violation of this
covenant during such period of time when Borrower is contesting the
application of any such law or regulation.
1/ST/ SOURCE'S ACCEPTANCE OF LATE OR PARTIAL PAYMENTS, EXCUSE OF ANY DEFAULT, OR
DELAY IN ENFORCEMENT OF ANY RIGHT, SHALL NOT ESTABLISH A CUSTOM OR COURSE OF
ACTION AS TO ANY WAIVER OF 1/ST/ SOURCE'S RIGHTS AND REMEDIES. NO WAIVER BY
1/ST/ SOURCE SHALL BE EFFECTIVE UNLESS IN WRITING.
Notwithstanding anything contained in any document entered into, between
Borrower and 1/st/ Source to the contrary, this Note is not subject to the terms
of any General Loan Agreement heretofore or hereafter entered into between
Borrower and 1/st/ Source.
This Note shall be secured by that Purchase Money Real Estate Mortgage and
Security Agreement of even date herewith covering that real property being
acquired by Borrower with the proceeds hereof located in St. Joseph County, as
presently improved.
This Note is not assignable but is binding and shall inure to the benefit
of 1/st/ Source's successors in interest through merger or acquisition.
Borrower agrees to give 1/st/ Source written notice, by registered or
certified mail, of any action or inaction by 1/st/ Source or any agent or
attorney of 1/st/ Source in connection with the Note or the Loan Documents or
the transactions contemplated thereby that may be actionable against 1/st/
Source or any agent or attorney of 1/st/ Source or a defense to payment for any
reason, including, but not limited to, commission of a tort or violation of any
contractual duty or duty implied by law. Borrower agrees that unless such notice
is given as promply as possible (and in any event within one hundred eight (180)
days) after Borrower has knowledge or with the exercise of reasonable diligence
should have had knowledge of any such action or inaction, Borrower shall not
asset, and Borrower shall be deemed to have waived,any such claim or defense.
Any dispute, controversy or claim arising out of, or in connection with the
Agreement or the breach, termination or the validity thereof, shall be resolved
by final and binding arbitration I accordance with the Commercial Rules of the
American Arbitration Association. The arbitration shall be hears and determined
by one arbitrator, appointed in accordance with those Rules. Each party shall
bear its own costs for preparing and presenting its case. The costs of the
hearing room facilities record transcription, and the arbitrator's fee shall be
borne equally by the parties. The place of the arbitration shall be South Bend,
Indiana, United States of America and the award shall be deemed an award of the
State of Indiana. The arbitrator shall determine the matters in dispute in
accordance with the laws (substantive and procedural) of the State of Indiana,
excluding Indian's choice of law provisions. The award shall be made and shall
be made payable in U.S. dollars, free of any tax or deduction. The award shall
include interest, at an appropriate rate fixed by the arbitrator, from the date
of any breach or violation of this Agreement to the date when the award is paid
in full. The arbitrator's award will be the sole and exclusive remedy between
them regarding any and all claims and counterclaims presented to the arbitrator.
Judgment upon the award may be entered in any court of competent jurisdiction.
This Note and payments due hereunder are being delivered and accepted in
the State of Indiana and shall be interpreted, construed and governed by the
internal laws, and not the law of conflicts, of the State of Indiana.
ADDRESS OF BORROWER: BORROWER: AM GENERAL CORPORATION
105 North Niles Avenue
P.O. Box 7025
South Bend, IN 46634-7025 By: __________________________________
Paul J. Cafiero, Vice President
OFFICER'S INITIAL: ____________
ACCOUNT NUMBER: ____________
NOTE NUMBER: ____________