Exhibit 99(b)(4)
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Guaranty Bank ----------------------------------------
and Trust Company BORROWER
Seventeenth & Market Street BUMGARNER ENTERPRISES INC
P.O. Box 5847 COMMERCIAL/
Denver, Colorado 80217 AGRICULTURAL
(303) 296-9600 REVOLVING OR DRAW
"LENDER" ADDRESS NOTE-FIXED RATE
3400 82ND WAY NORTH
ST PETERSBURG, FL 33710
TELEPHONE NO. IDENTIFICATION NO.
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OFFICER INTEREST PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN
INITIALS RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
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JLM 6.400% $8,500,000.00 01/29/01 01/29/03 4600240001
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PROMISE TO PAY
For value received, Borrower promises to pay to the order of Lender, indicated
above, the principal amount of EIGHT MILLION FIVE HUNDRED THOUSAND AND NO/100
Dollars ($ 8,500,000.00) or, if less, the aggregate unpaid principal amount of
all loans or advances made by Lender to Borrower, plus simple interest on the
unpaid principal balance at the rate and in the manner described below. All
amounts received by Lender shall be applied first to late payment charges and
expenses, then to accrued interest, and then to principal.
REVOLVING OR DRAW FEATURE: This Note possesses a revolving or draw feature as
indicated. |_| This Note possesses a revolving feature. Upon satisfaction of all
conditions set forth in this Note, Borrower shall be entitled to borrow up to
the full principal amount of the Note and to repay and reborrow from time to
time during the term of the Note. |X| This Note possesses a draw feature. Upon
satisfaction of all conditions set forth in this Note, Borrower shall be
entitled to make one or more draws under this Note. The aggregate amount of such
draws shall not exceed the full principal amount of this Note.
Lender shall maintain a written ledger of the amounts loaned to and repaid by
Borrower under this Note. The aggregate unpaid principal amount shown on such
ledger shall be rebuttable presumptive evidence of the principal amount owing
and unpaid on this Note. The Lender's failure to record the date and amount of
any loan or advance on such ledger shall not limit or otherwise affect the
obligations of the Borrower under this Note to repay the principal amount of the
loans or advances together with all interest accruing thereon. Lender shall not
be obligated to provide Borrower with a copy of the ledger on a periodic basis,
however, Borrower shall be entitled to inspect or obtain a copy of the ledger
during Lender's business hours.
CONDITIONS FOR ADVANCE: It there is no default under this Note, Borrower shall
be entitled to make draws under this Note (subject to the limitations described
above) under the following conditions:
ADVANCES MAY BE MADE BY PHONE OR IN PERSON. CONTACT EITHER LOAN OPERATIONS
OR YOUR OFFICER'S LOAN ASSISTANT.
INTEREST RATE: Interest on the outstanding principal balance under this Note
shall be computed on the basis of 360 days and the actual number of days per
year. So long as there is no default under this Note, interest on this Note
shall be calculated at the fixed rate of SIX AND 400/1000 percent (6.400%) per
annum or the maximum interest rate Lender is permitted to charge by law,
whichever is less.
DEFAULT RATE: In the event of any default under this Note, the Lender may In its
discretion, determine that all amounts owed to Lender shall bear interest at the
lesser of: THIRTY-SIX AND NO/100 PERCENT (36.00%) PER ANNUM or the maximum
interest rate Lender is permitted to charge by law.
PAYMENT SCHEDULE: Borrower shall pay the principal and interest according to the
following schedule:
INTEREST ONLY PAYMENTS BEGINNING FEBRUARY 28, 2001 AND CONTINUING AT
MONTHLY TIME INTERVALS THEREAFTER. A FINAL PAYMENT OF THE UNPAID PRINCIPAL
BALANCE PLUS ACCRUED INTEREST IS DUE AND PAYABLE JANUARY 29, 2003
All payments will be made to Lender at its address described above and in lawful
currency of the United States of America.
RENEWAL: If checked, |_| this Note is a renewal of Loan Number ___________.
SECURITY: To secure the payment and performance of obligations incurred under
this Note, Borrower grants Lender a security interest in, and pledges and
assigns to Lender all of Borrower's rights, title, and interest, in all monies,
instruments, savings, checking and other deposit accounts of Borrower's,
(excluding IRA, Keogh and trust accounts and deposits subject to tax penalties
if so assigned) that are now or In the future in Lender's custody or control.
Upon default and to the extent permitted by applicable law, Lender may exercise
its security interest in all such property which shall be in addition to
Lender's common law right of setoff. |X| If checked, the obligations under this
Note are also secured by a lien and/or security interest in the property
described in the document executed in connection with this Note as well as any
other property designated as security now or in the future.
PREPAYMENT: This Note may be prepaid in part or in full on or before its
maturity date. If this Note contains more than one installment, all prepayments
will be credited as determined by Lender and as permitted by law. If this Note
is prepaid in full, there will be: |X| No minimum finance charge or prepayment
penalty; |_| A minimum finance charge of $__________________ |_| A prepayment
penalty of __________________ % of the amount of principal prepaid.
LATE PAYMENT CHARGES: If an installment payment is received more than n/a days
late, Borrower will be charged a late payment charge of $ n/a or n/a % of the
late installment, whichever is greater |_| less |_|, as permitted by law.
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BORROWER ACKNOWLEDGES THAT BORROWER HAS READ, UNDERSTANDS, AND AGREES TO THE
TERMS AND CONDITIONS OF THIS NOTE INCLUDING THE PROVISIONS ON THE REVERSE SIDE.
BORROWER ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS NOTE.
NOTE DATE: JANUARY 29, 2001
BORROWER: BUMGARNER ENTERPRISES INC BORROWER:
/s/ Charles G. Masters
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CHARLES G. MASTERS
PRESIDENT
BORROWER: BORROWER:
_____________________________________ _____________________________________
BORROWER: BORROWER:
_____________________________________ _____________________________________
BORROWER: BORROWER:
_____________________________________ _____________________________________
TERMS AND CONDITIONS
1. DEFAULT: Borrower will be in default under this Note in the event that
Borrower or any guarantor:
(a) fails to make any payment on this Note or any other indebtedness to
Lender when due;
(b) fails to perform any obligation or breaches any warranty or covenant to
Lender contained in this Note or any other present or future written
agreement regarding this or any indebtedness of Borrower to Lender;
(c) provides or causes any false or misleading signature or representation
to be provided to Lender;
(d) allows the collateral securing this Note (if any) to be lost, stolen,
destroyed, damaged In any material respect, or subjected to seizure or
confiscation;
(e) permits the entry or service of any garnishment, judgment, tax levy,
attachment or lien against Borrower, any guarantor, or any of their
property;
(f) dies, becomes legally incompetent, is dissolved or terminated, ceases to
operate its business, becomes insolvent, makes an assignment for the
benefit of creditors, or becomes the subject of any bankruptcy,
insolvency or debtor rehabilitation proceeding; or
(g) causes Lender to deem itself insecure for any reason, or Lender, for any
reason, in good faith deems itself insecure.
2. RIGHTS OF LENDER ON DEFAULT: If there is a default under this Note, Lender
will be entitled to exercise one or more of the following remedies without
notice or demand (except as required by law):
(a) to declare the principal amount plus accrued interest under this Note
and all other present and future obligations of Borrower immediately due
and payable in full;
(b) to collect the outstanding obligations of Borrower with or without
resorting to judicial process;
(c) to take possession of any collateral in any manner permitted by law;
(d) to require Borrower to deliver and make available to Lender any
collateral at a place reasonably convenient to Borrower and Lender;
(e) to sell, lease or otherwise dispose of any collateral and collect any
deficiency balance with or without resorting to legal process;
(f) to set-off Borrower's obligations against any amounts due to Borrower
including, but not limited to monies, instruments, and deposit accounts
maintained with Lender; and
(g) to exercise all other rights available to Lender under any other written
agreement or applicable law.
Lender's rights are cumulative and may be exercised together, separately, and in
any order. Lender's remedies under this paragraph are in addition to those
available at common law, such as the right of set-off.
3. DEMAND FEATURE: If this Note contains a demand feature, then notwithstanding
anything to the contrary contained in this Note, Lender's rights with respect to
the events of default identified above shall not be limited, restricted,
impaired or otherwise adversely affected by the demand feature of this Note.
Lender's right to demand payment, at any time, and from time to time, shall be
in Lender's sole and absolute discretion, whether or not any default has
occurred.
4. FINANCIAL INFORMATION: Borrower will provide Lender with current financial
statements and other financial information (including, but not limited to,
balance sheets and profit and loss statements) upon request.
5. MODIFICATION AND WAIVER: The modification or waiver of any of Borrower's
obligations or Lender's rights under this Note must be contained in a writing
signed by Lender. Lender may perform any of Borrower's obligations or delay or
fail to exercise any of its rights without causing a waiver of those obligations
or rights. A waiver on one occasion will not constitute a waiver on any other
occasion. Borrower's obligations under this Note shall not be affected if Lender
amends, compromises, exchanges, fails to exercise, impairs or releases any of
the obligations belonging to any co-borrower or guarantor or any of its rights
against any co-borrower, guarantor or collateral.
6. SEVERABILITY AND INTEREST LIMITATION: If any provision of this Note violates
the law or is unenforceable, the rest of the Note will remain valid.
Notwithstanding anything contained in this Note 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 be paid, any excess shall constitute a payment
of, and be applied to, the principal balance hereof, and if the principal
balance has been fully paid, then such interest shall be repaid to the Borrower.
7. ASSIGNMENT: Borrower will not be entitled to assign any of its rights,
remedies or obligations described in this Note without the prior written consent
of Lender which may be withheld by Lender in its sole discretion. Lender will be
entitled to assign some or all of its rights and remedies described in this Note
without notice to or the prior consent of Borrower in any manner.
8. NOTICE: Any notice or other communication to be provided to Borrower or
Lender under this Note shall be in writing and sent to the parties at the
addresses described in this Note or such other address as the parties may
designate in writing from time to time.
9. APPLICABLE LAW: This Note shall be governed by the laws of the state
indicated in Lender's address. Borrower consents to the jurisdiction and venue
of any court located in the state indicated in Lender's address in the event of
any legal proceeding pertaining to the negotiation execution, performance or
enforcement of any term or condition contained in this Note or any related loan
document and agrees not to commence or seek to remove such legal proceeding in
or to a different court.
10. COLLECTION COSTS: If Lender hires an attorney to assist in collecting any
amount due or enforcing any right or remedy under this Note, Borrower agrees to
pay Lender's attorney's fees, to the extent permitted by applicable law, and
collection costs.
11. MISCELLANEOUS: This Note is being executed for commercial/agricultural
purposes. Borrower and Lender agree that time is of the essence. Borrower waives
presentment, demand for payment, notice of dishonor and protest. Borrower hereby
waives any right to trial by jury in any civil action arising out of, or based
upon, this Note or the collateral securing this Note. If Lender obtains a
judgment for any amount due under this Note, interest will accrue on the
judgment at the Default Rate described in this Note. All references to Borrower
in this Note shall include all of the parties signing this Note. If there is
more than one Borrower, their obligations will be joint and several. This Note
and any related documents represent the complete and integrated understanding
between Borrower and Lender pertaining to the terms and conditions of those
documents.
12. ADDITIONAL TERMS: