Attached files
EXHIBIT
10.5(a)
AMENDED AND RESTATED PROMISSORY NOTE
(Note)
(Note)
$2,051,969
Mentor, Ohio
January 3, 2009
January 3, 2009
FOR VALUE RECEIVED, the undersigned LIGHTNING PIPELINE COMPANY, INC., an Ohio corporation
(hereinafter the Maker) promises to pay to the order of RICHARD M. OSBORNE, TRUSTEE, his
successors and assigns (hereinafter the Holder), the principal sum of Two Million Fifty-One
Thousand Nine Hundred Sixty-Nine Dollars ($2,051,969), together with interest accruing at the rate
of six percent (6%) per annum. Maker shall pay the Holder interest on this Note on a monthly basis,
which interest shall be due on or before the first day of each month, or at Makers option, Maker
can accrue said interest and all such accrued amounts shall be paid on or before the Maturity
Date (as defined below). All unpaid interest and principal shall be paid in full by Maker to
Holder no later than January 3, 2012 (the Maturity Date) provided, however, that the Maker may
prepay in whole or in part, without premium or penalty the outstanding indebtedness evidenced by
this Note, provided each such prepayment shall be applied to the payments in the inverse order of
maturity.
The occurrence of any one of the following shall constitute an event of default hereunder:
1. | The failure to pay the principal amount and all accrued interest on the Note in full on or before the Maturity Date. |
2. | The undersigned shall suffer or permit any act providing grounds for the entry of an Order for relief under any chapter of the Bankruptcy Code; |
The Maker waives demand, presentment for payment, protest, notice of protest and of
non-payment, and any and all lack of diligence or delays in collection or enforcement of this Note.
The undersigned agrees to pay to the Holder hereof all costs of collection of the indebtedness
evidenced hereby, including without in any way intending to limit the generality of the foregoing,
reasonable attorney fees incurred in connection with such collection proceedings.
The Maker further authorizes any attorney at law to appear in any court of record in Cuyahoga
and/or Lake County, Ohio or in any other county where the Maker may reside or do business, after
the indebtedness evidenced hereby becomes due by acceleration or otherwise, and waive the issuing
and service of process, and confess a personal judgment against the Maker in favor of the Holder
hereof for the amount then appearing due, together with the costs of suit and thereupon to release
all errors and waive all rights of appeal, and stay of execution. This warrant of attorney to
confess judgment shall remain in full force and effect so long as any portion of the
indebtedness evidenced hereby remains unpaid, and any confession of judgment and subsequent
vacation thereof shall not constitute termination of this warrant of attorney to confess
judgment.
This Note is to be construed and enforced according to and governed by the laws of the State
of Ohio.
If any provision of this Note, or any covenant, stipulation, obligation, agreement, act, or
action, or part thereof made, assumed or entered into, or taken pursuant hereto or in connection
herewith shall be adjudged illegal or invalid, such illegality or invalidity shall not affect any
other provision or any other covenant, stipulation, obligation, agreement, act, or action, or part
thereof, made, assumed, entered into, or taken, each of which shall be construed and enforced as if
such illegal or invalid portion were not contained herein. Such illegality or invalidity or any
application thereof shall not affect any legal and valid application thereof, and each such
provision, covenant, stipulation, obligation, agreement, act, or action, or part shall be deemed to
be effective, operative, made entered into, or taken in the manner and to the full extent permitted
by law.
Notwithstanding anything to the contrary elsewhere herein contained, the current holder of
this Note, Richard M. Osborne, Trustee, shall have the sole, personal, exclusive, and
non-assignable right to accelerate the due date for payment in full of the indebtedness evidenced
herein to a date specified by Richard M. Osborne, Trustee in a written notice of his election to do
so, which date shall not be earlier than thirty (30) days of the date of such written notice.
This Note amends, restates and replaced the previous Promissory Note between Maker and Holder
dated December 1, 2008 in the original principal amount of $4,141,932.18
WARNING BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHTTO NOTICE AND COURT TRIAL. IF YOU
DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE
POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARD- LESS OF ANY CLAIMS YOU MAY HAVE AGAINST
THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
Witnessed by:
LIGHTNING PIPELINE COMPANY, INC. | ||||||||
/s/ Thomas J. Smith
|
By: | /s/ Richard M. Osborne | ||||||
Name: Thomas J. Smith
|
Name: Richard M. Osborne | |||||||
Title: Chief Executive Officer |