<PAGE> 1
Exhibit 10.29
PROMISSORY NOTE
$5,433,000.00 Cincinnati, Ohio
September 1, 2000
FOR VALUE RECEIVED, the undersigned, promises to pay to the order of The
Huntington National Bank, a national banking association (hereinafter called
the"Bank"), which term shall include any holder hereof), at such place as the
Bank may designate or, in the absence of such designation, at any of the Bank's
offices, the sum of FIVE MILLION FOUR HUNDRED THIRTY THREE THOUSAND and NO/100
Dollars ($5,433,000.00), (hereinafter called the "Principal Sum") together with
interest as hereinafter provided.
The Bank shall be entitled to rely on any oral or telephonic communication
requesting an advance and/or providing disbursement instructions hereunder,
which shall be received by it in good faith from anyone reasonably believed by
the Bank to be the undersigned, or the undersigned's authorized agent. The
undersigned agrees that all partial advances made and payments received by the
Bank will be evidenced by entries made by the Bank into its electronic data
processing system and/or internal memoranda maintained by the Bank. The
undersigned further agrees that the sum or sums shown on the most recent
printout from the Bank's electronic data processing system and/or such memoranda
shall be rebuttably presumptive evidence of the amount of Principal Sum and of
the amount of any accrued interest.
This Note is executed pursuant to a Loan and Security Agreement dated
September 1, 2000 and all the covenants, representations, agreements, terms
and conditions contained therein, including, but not limited to, additional
conditions of default and conditions to any partial advances, are incorporated
herein as if fully rewritten.
INTEREST
Prior to maturity, interest will accrue on the unpaid balance of the
Principal Sum at a variable rate of interest per annum, which shall change in
the manner set forth below, equal to one and three fourths of one percentage
points (1.75%) in excess of the LIBOR Rate, as hereafter defined (the "Contract
Rate").
As used herein, LIBOR Rate shall mean the rate obtained by dividing (a)
actual or estimated per annum rates of interest offered to U.S. banks for
deposits in U.S. dollars in the London interbank market for one month periods
and in an aggregate amount comparable to the Principal Sum, as offered and
determined by the Bank in its sole discretion based upon information which
appears on page LIBOR01, captioned British Bankers Association Interest
Settlement Rates, of the Reuters America Network, a service of Reuters America
Inc. (or such other page that may replace that page on that service for the
purpose of displaying London interbank offered rates; or if such service ceases
to be available or ceases to be used by the Bank, such other reasonably
comparable money rate service as the Bank may select) or upon information
obtained from any other reasonable procedure, on each Banking Day; by (b) an
amount equal to one (1) minus the stated maximum rate (expressed as a decimal),
if any, of all reserve requirements (including, without limitation any marginal,
emergency, supplemental, special or other reserves) that is specified on each
date the Contract Rate is determined by the Board of Governors-DD Duplication of
the Federal Reserve System (or any successor agency thereto) for determining the
maximum reserve requirement with respect to eurocurrency funding (currently
referred to as ("Eurocurrency liabilities" in Regulation D of such Board)
maintained by a member bank of such System, or any other regulations of any
governmental authority having jurisdiction with respect thereto, all as
conclusively determined by Bank, absent manifest error, such sum to be rounded
up, if necessary, to the nearest whole multiple of one-sixteenth of one percent
(1/16 of 1.0%) per annum.
As used herein, Banking Day shall mean any day other than a Saturday or
Sunday on which banks are open for business in Cincinnati, Ohio and on which
banks in London, England are open for settlement of payments.
1
<PAGE> 2
In the event that any applicable law, treaty, rule or regulation (whether
domestic or foreign) now or hereafter in effect, or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by the Bank with any
request or directive of such authority (whether or not having the force of law),
including without limitation exchange controls, shall make it unlawful or
impossible for the Bank to offer the Contract Rate under this Note, then and in
any such event, the Bank shall promptly give notice thereof to the undersigned.
In such case, the interest shall immediately begin to accrue, without selection
by the undersigned, at the Prime Commercial Rate. As used herein, Prime
Commercial Rate shall mean the rate established by the Bank from time to time
based on its consideration of economic, money market, business and competitive
factors. The Prime Commercial Rate is not necessarily the lowest lending rate of
the Bank.
Subject to any maximum or minimum interest rate limitation by applicable
law, the Contract Rate shall change automatically, without notice to the
undersigned immediately on each Banking Day with each change in the LIBOR Rate,
as applicable, with any change thereto effective as of the opening of business
on the day of the change.
In the event that any applicable law, treaty, rule or regulation (whether
domestic or foreign) now or hereafter in effect, or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by the Bank with any
request or directive of any such authority (whether or not having the force of
law), shall (a) affect the basis of taxation of payments to the Bank of any
amounts payable by the undersigned for under this Note while interest is
accruing at the Contract Rate (other than taxes imposed on the overall net
income of the Bank by the jurisdiction, or by any political subdivision or
taxing authority of any such jurisdiction, in which the Bank has its principal
office), or (b) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by the Bank, or (c) shall impose any other
condition, requirement or charge with respect to this Note (including, without
limitation, any capital adequacy requirement, any requirement which affects the
manner in which the Bank allocates capital resources to its commitments or any
similar requirement), and the result of any of the foregoing is to increase the
cost to the Bank of making or maintaining the loan evidenced hereby, to reduce
the amount of any sum receivable by the Bank thereon, or to reduce the rate of
return on the Bank's capital, then the undersigned shall pay to the Bank, from
time to time, upon request of the Bank, additional amounts sufficient to
compensate the Bank for such increased cost, reduced sum receivable or reduced
rate of return to the extent the Bank is not compensated therefor in the
computation of the interest rates applicable to the Principal Sum. A detailed
statement as to the amount of such increased cost, reduced sum receivable or
reduced rate of return, prepared in good faith and submitted by the Bank to the
undersigned, shall be conclusive and binding for all purposes relative to the
Bank, absent manifest error in computation. This provision shall survive the
payment in full of this Note.
If the undersigned makes any payment of principal on any other date than as
agreed under this Note, or fails to make any payment of principal or interest
when due or at the maturity, the undersigned shall reimburse the Bank on demand
for any resulting loss or expense incurred by the Bank, determined in the Bank's
reasonable opinion, including without limitation any loss incurred in obtaining,
liquidating or employing deposits from third parties. A detailed statement as to
the amount of such loss or expense, prepared in good faith and submitted by the
Bank to the undersigned shall be conclusive and binding for all purposes absent
manifest error in computation.
MANNER OF PAYMENT
Payment of the Principal Sum and interest thereon shall be paid as follows:
(1) All accrued interest, shall be due and payable on the 1st day of each
calendar month, commencing on October 1, 2000, and continuing each month
thereafter until maturity; and
2
<PAGE> 3
(2) The Principal Sum shall be due and payable in three consecutive annual
installment payments beginning on September 1, 2001. Each installment payment of
the Principal Sum shall be in an aggregate amount equal to not less than one
fifth of the Principal Sum except that the final installment payment shall be
for the entire unpaid balance of the Principal Sum. All accrued interest shall
be payable on the same dates as installment payments of the Principal Sum.
LATE CHARGE
Any installment payment or other payment not made within 10 days of the
date such payment is due shall be subject to a late charge (and not a penalty)
equal to 5% of the amount of the payment.
DEFAULT RATE
Upon the occurrence of any default by the undersigned, whether by
acceleration or otherwise, interest shall accrue on the unpaid balance of the
Principal Sum and unpaid interest, if any, until paid at a rate equal to two
percent (2%) per annum in excess of the Contract Rate.
MATURITY
Unless sooner paid in full by prepayment, acceleration or otherwise, this
Note shall mature and the Principal Sum shall be due and payable on August 31,
2003, with all accrued interests and costs as provided herein.
SECURITY
As security for the payment of the obligations evidenced hereby, and of all
other obligations and liabilities of the undersigned to the Bank, whether now
existing or hereafter arising, the undersigned hereby grants the Bank a first
and best security interest in all of the undersigned's assets, including,
without limitation, all equipment, inventory, receivables, furniture, general
intangibles, real property, improvements, fixtures, cash and leases, and all
substitutions and additions thereto, whether existing now or in the future and
the proceeds thereof (all, together with any other property in which the Bank
shall at any time be given a security interest, hereinafter referred to as the
"Collateral") and an Unconditional Guaranty of Payment and Performance executed
by Allen G. Zaring, III. The obligations evidenced hereby may from time to time
be evidenced by another note or notes given in substitution, renewal or
extension hereof, and the Bank's security interest in or any mortgage on the
Collateral shall remain in force and effect notwithstanding any such
substitution, renewal, or extension. All remedies provided for herein upon any
default by the undersigned shall be cumulative and not exclusive.
If, at the time of payment and discharge hereof, any of the undersigned
shall be then directly or contingently liable to the Bank as maker, indorser,
surety or guarantor of any other Note, bill of exchange, or other instrument,
then the Bank may continue to hold any of the collateral as security therefor,
even though this Note shall have been surrendered to the undersigned. The Bank
shall not be bound to take any steps necessary to preserve any rights in the
Collateral against prior parties. If any obligation evidenced by this Note is
not paid when due, the Bank may, at its option, demand, sue for, collect or make
any compromise or settlement it deems desirable with reference to the
Collateral, and shall have the rights of a secured party under the law of the
State of Ohio, and the undersigned shall be liable for any deficiency.
Upon receipt of payment from the Borrower in the amount of the original
amount advanced on any Model Homes, said Model Home shall be released from the
Mortgage and the security interest provided in the Loan and Security Agreement
to the Bank.
DEFAULT
Upon the occurrence of any of the following events:
3
<PAGE> 4
(1) the undersigned fails to make any payment within ten (10) days of when
due hereunder or to perform any non-monetary obligation of the undersigned to
the Bank within ten (10) days of written notice from Bank;
(2) the undersigned fails to do all things necessary to preserve and
maintain the value and collectibility of the Collateral;
(3) any event occurs and continues which constitutes a default by any of
the undersigned under any other obligation to or agreement with the Bank;
(4) the aggregate value of the Collateral material declines in value or
becomes unsatisfactory to the Bank and the undersigned fails to furnish
immediately upon request additional Collateral satisfactory to Bank;
(5) the guarantor, Allen G. Zaring, III, revokes his Unconditional Guaranty
of Payment and Performance of even date herewith, or any event occurs and
continues which constitutes a default by said guarantor under his guaranty;
(6) the undersigned fails to furnish true and complete financial statements
from time to time on request of the Bank, or as otherwise provided in Section 8
of the Loan and Security Agreement of even date herewith;
(7) the death or dissolution of any of the undersigned, or any endorser,
surety, accommodation party or said guarantor; or
(8) any representation, warranty or other information given to the Bank by
any of the undersigned, or by any indorser, surety, accommodation party or
guarantor proves to be false, untrue or misleading;
then the Bank may, at its option, without notice or demand, accelerate the
maturity of the obligations evidenced hereby, which obligations shall become
immediately due and payable. In the event the Bank shall institute any action
for the enforcement or collection of the obligations evidenced hereby, the
undersigned agree to pay all costs and expenses of such action, including,
without limitation reasonable attorneys' fees, to the extent permitted by law.
GENERAL PROVISIONS
All of the parties hereto, including the undersigned, and any indorser,
surety, accommodation party or guarantor, hereby: (1) severally waive
presentment, notice of dishonor, protest, notice of protest, and diligence in
bringing suit against any party hereto; (2) consent that, without discharging or
modifying the duties of any of them and without notice, the Bank may (A) extend
the time of payment an unlimited number of times before or after maturity, (B)
grant any other indulgence at any time and from time to time to any party
hereto, (C) delay in exercising or omit to exercise any right against, or delay
in taking or omit to take any action to collect from or pursue the Bank's
remedies against, any party hereto, (D) release or modify any collateral,
security or guaranties; and (3) severally waive any claim, right or remedy which
such party may now have or hereafter acquire against any other party or parties
hereto that arises hereunder and/or from the performance by such party hereunder
including, without limitation, any claim, remedy or right of subrogation,
reimbursement, exoneration, contribution, indemnification or participation in
any claim, right or remedy of the Bank against the other party or parties, or
any security which the Bank now has or hereafter acquires, whether such claim,
right or remedy arises in equity, under contract, by statute, under common law
or otherwise. The Bank shall not be required to pursue any party hereto,
including any guarantor, or to exercise any rights against any Collateral
provided herein before exercising any other such rights.
No waiver of any term or condition of this Note shall be effective unless
in writing and signed by the party giving or granting the waiver. No amendment
of any term or condition of this Note shall be effective unless in writing and
signed by the undersigned and the Bank. No failure or delay on the part of the
Bank in exercising any right, power or privilege under this Note, related loan
documents or law nor any course of dealing, shall operate as a waiver of such
4
<PAGE> 5
right, power or privilege or preclude any other or further exercise thereof or
of any other right, power or privilege.
The captions used herein are for reference only and shall not be deemed a
part of this Note. If any of the terms or provisions of this Note shall be
deemed unenforceable, the enforceability of the remaining terms and provisions
shall not be affected. This Note shall be governed by and construed in
accordance with the law of the State of Ohio.
The undersigned agrees that, to the extent that any of the undersigned make
a payment or payments to the Bank, or the Bank receives any proceeds of
Collateral, which payment or payments or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to any of the undersigned, its estate, trustee,
receiver or any other party, including without limitation any guarantor, under
any bankruptcy law, state or federal law, common law or equitable cause, then to
the extent of such payment or repayment, the obligations under this Note or the
part thereof which has been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the date such initial
payment, reduction or satisfaction occurred.
BORROWER:
FIRST CINCINNATI LEASING 2000 LLC,
an Ohio limited liability company
By: /s/ Allen G. Zaring, III
------------------------------
Allen G. Zaring, III
Its: Sole Member and Manager
5
