Exhibit 10.17
NOTE
$1,100,000.00
Earlysville, Virginia
May 17, 1994
FOR VALUE RECEIVED, the undersigned, AEROSONIC CORPORATION, a Delaware
corporation authorized to do business in the State of Florida ("Aerosonic") and
AVIONICS SPECIALTIES, INC., a Virginia corporation ("Avionics") (Aerosonic and
Avionics, jointly and severally, will be sometimes collectively referred to
below as the "Borrower") promises to pay to the order of XXXXXXX BANK OF
PINELLAS COUNTY, a Florida banking corporation (the "Lender"), the principal sum
of ONE MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($1,100,000.00), together
with interest on the principal balance remaining unpaid from time to time at the
rates set forth below.
Term. Except as provided in the next following paragraph, which shall
control and prevail, the term of this Note shall be from the date of this Note
through and including the date exactly fifteen (15) years from the date hereof
(the "Term"). The last day of the Term will be sometimes referred to below as
the "Maturity Date". The Term is comprised of two distinct loan periods, namely
the "Fixed Rate Period" and the "Variable Rate Period". The Fixed Rate Period
shall commence on the date of this Note and extend through and including the day
immediately preceding the date that is exactly sixty (60) months following the
date of this Note. The Variable Rate Period shall commence on the day following
the last day of the Fixed Rate Period (the "Variable Rate Period Commencement
Date") and shall end on the Maturity Date.
Demand Option. Notwithstanding the provisions of the paragraph next
above, or in anything contained in this Note to the contrary, all parties hereto
acknowledge and agree that the Lender shall have the absolute right to demand
repayment in full of this Note on May 17, 2001 (the "Demand Date"). The sole
condition precedent for Xxxxxx's exercise of its right to demand repayment of
this Note on the Demand Date shall be the sending of written notice by Xxxxxx to
Borrower demanding repayment of this Note, which written notice must be posted
in the U.S. Mail on or before January 17, 2001. Upon fulfillment of that
condition precedent by Xxxxxx, the Maturity Date of this Note shall be the
Demand Date. Should Lender fail to fulfill that condition precedent as
aforesaid, the Maturity Date of this Note shall be and remain the Maturity Date
set forth in the paragraph next above.
Signed for Identification
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
The President of Aerosonic Corporation
1
Interest. The principal balance of this Note remaining unpaid from
time to time shall bear interest at the following rates:
(i) Fixed Rate Period. The principal balance shall bear interest
from the date of this Note through and including the last day of the Fixed Rate
Period at the rate of seven and one half percent (7 1/2%) per annum.
(ii) Variable Rate Period. The principal balance remaining unpaid
from time to time during the Variable Rate Period shall bear interest from the
Variable Rate Period Commencement Date thorough and including the last day that
all indebtedness evidenced, hereby is paid in full at the rates per annum equal
to ONE PERCENT (1%) over the prime rate (the "Prime Rate") announced or
published by XXXXXXX XXXXX, INC., (the "Prime Rate Lender") from time to time,
to be adjusted daily as and when the Prime Rate is adjusted. In the event the
Prime Rate Lender shall cease or fail to announce or publish a Prime Rate,
regardless of the reason thereof, then the Lender may utilize the Prime Rate
announced or published by any other nationally known financial institution for
purposes of determination of the interest rate for the remainder of the Term. In
the event that all nationally known financial institutions shall cease or fail
to announce or publish a Prime Rate, regardless of the reasons therefor, then
the Lender shall select a comparable national index, and if no comparable
national index is available, then Lender shall establish the interest rate for
the remainder of the Term.
Prime Rate. The term "Prime Rate" shall mean the annual rate of
interest announced from time to time by the Prime Rate Lender. The Prime Rate is
a reference rate for the information and use of the Prime Rate Lender in
establishing the actual rates to be charged its borrowers. It is not intended to
and does not represent the best or lowest rate of interest available to any
borrower or class of borrowers.
Payments. Principal plus interest shall be due and payable and shall
be paid at Post Office Xxx 00000, Xx. Xxxxxxxxxx, Xxxxxxx 00000-2288, ATTN:
Commercial Loan Department, or at such other place as the Lender may designate
from time to time as follows:
(i) Monthly Payment. Except as provided in the paragraph
captioned "Demand Option" above, which shall control and prevail, all times
during the Fixed Rate Period and Variable Rate Period, principal plus interest
shall be due and payable in equal monthly installments of principal in the
amount of SIX THOUSAND ONE HUNDRED ELEVEN
Signed for Identification
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
The President of Aerosonic Corporation
2
AND NO/100 DOLLARS ($6,111.00) each, together with all accrued interest thereon,
commencing on the date exactly one (1) month following the date of this Note,
and on the same day of each succeeding month thereafter through and including
the same day of the month next preceding the Maturity Date.
(ii) Maturity Date. On the Maturity Date, all indebtedness
evidenced by this Note (whether unpaid principal, accrued interest or otherwise)
that remains unpaid shall be due and payable and shall be paid.
Each installment of principal plus interest under subparagraph (i) above shall
be credited first on account of the interest then accrued on said principal
remaining unpaid and then in reduction of said unpaid principal.
Manner of Calculation. Interest shall be calculated on the basis of a
three hundred sixty (360) day year for actual days elapsed. Interest will be
charged on the principal balance of the loan that remains outstanding from time
to time.
Late Charge. Any installment not received within fifteen (15) days
when due shall be subject to, and it is agreed that the Lender shall collect
thereon and therewith a "late charge" in the amount of five percent (5%) of the
payment upon each such delinquent installment. Said "late charge" shall be
immediately due and payable and shall be paid by the Borrower without notice or
demand of the holder hereof.
Prepayment. Except as provided below, Borrower shall have the option
of prepaying all of the principal of this Note at any time during the term of
this Note without premium, penalty or charge. Provided, however, there shall be
a prepayment penalty of one percent (1%) of the then outstanding principal
balance of this Note if this Note is refinanced, in whole or in part, with
another lending institution prior to the Maturity Date. The Lender may require
any partial prepayments to be made on the date monthly installments are due
hereunder. Any partial prepayment shall be applied against the principal amount
outstanding and shall not postpone the due date of any subsequent monthly
installment or change the amount of such installments, unless the Lender shall
otherwise agree in writing. In the event of any full prepayment, all accrued
interest and other charges evidenced by this Note and the instruments of
security for this Note shall be paid at the same time as such prepayment.
Signed for Identification
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
The President of Aerosonic Corporation
3
Consent and Waiver. Each Obligor (which term shall mean and include
the Borrower, each endorser, and all others who may become liable for all or any
part of the obligations evidenced and secured hereby), does hereby, jointly and
severally: (a) consent to any forbearance or extension of the time or manner of
payment hereof and to the release of all or any part of any security held by the
Lender to secure payment of this Note and to the subordination of the lien of
the mortgage and any other instrument of security securing this Note as to all
or any part of the property encumbered thereby, all without notice or consent of
that party; (b) agree that no course of dealing or delay or omission or
forbearance on the part of the Lender in exercising or enforcing any of its
rights or remedies hereunder or under any instrument securing this Note shall
impair or be prejudicial to any of the Xxxxxx's rights and remedies hereunder or
to the enforcement hereof and that the Lender may extend or postpone the time
and manner of payment and performance of this Note and any instrument securing
this Note, may grant forbearances and may release, wholly or partially, any
security held by the Lender as security for this Note and release, partially or
wholly, any person or party primarily or secondarily liable with respect to this
Note, all without notice to or consent by any party primarily or secondarily
liable hereunder and without thereby releasing, discharging or diminishing its
rights and remedies against any other party primarily or secondarily liable
hereunder; and (c) except as otherwise set forth in this Note and the
instruments of security for this Note, waive notice of acceptance of this Note,
notice of the occurrence of any default hereunder or under any instrument
securing this Note and presentment, demand, protest, notice of dishonor and
notice of protest and notices of any and all action at any time taken or omitted
by the Lender in connection with this Note or any instrument securing this Note
and waives all requirements necessary to hold that party to the liability of
that party.
Cross Default. A default under this Note shall be and constitute a
default under any and all other notes or other evidence of indebtedness and any
instruments of security therefor in which an Obligor is liable and of which the
Lender is the holder. A default under any other notes or other evidence of
indebtedness and any instrument of security therefor in which an Obligor is
liable and the Lender is the holder shall constitute a default under this Note
and the instruments of security therefor. The Lender is hereby granted a lien
upon and a security interest in all property of each Obligor now or at any time
hereafter in the possession of the Lender in any capacity whatsoever, including
but not limited to any balance or share of any deposit, trust or agency account
as security for the payment of this Note, and the Lender is hereby authorized
upon default to apply, on or after maturity (whether by acceleration or
otherwise) to the payment of this debt any such funds or property in possession
of the Lender belonging to each Obligor, in such order of application as Lender
Signed for Identification
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
The President of Aerosonic Corporation
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may from time to time elect, without advance notice.
Events of Default. The happening of any of the following events shall
constitute a default hereunder: (a) failure of any Obligor to pay any principal,
interest or any other sums required hereunder when due under this Note; or (b) a
default shall occur in any instrument securing this Note or in any other
instrument executed in connection with the Loan evidenced hereby, which is not
cured within the applicable curative period set forth in such instruments.
Acceleration. If a default shall occur hereunder which is not cured
within thirty (30) days or more, then at the option of the Lender, the entire
principal sum then remaining unpaid and accrued interest shall immediately
become due and payable without notice or demand, and said principal shall bear
interest from such date at the highest legal rate permitted by law, from time to
time, to be charged by Xxxxxx; it being agreed that interest not paid when due
shall, at the option of the Lender, draw interest at the rate provided for in
this paragraph. Failure to exercise the above options shall not constitute a
waiver of the right to exercise the same in the event of any subsequent default.
Attorneys' Fees. All parties liable for the payment of this Note agree
to pay the Lender reasonable attorneys' fees and costs, whether or not an action
be brought, for the services of counsel employed after maturity or default to
collect this Note or any principal or interest due hereunder, or to protect the
security, if any, or enforce the performance of any other agreement contained in
this Note or in any instrument of security, executed in connection with this
Loan, including costs and attorneys' fees on any appeal, or in any proceedings
under the National Bankruptcy Code or in any post judgment proceedings.
Notwithstanding anything contained in this Note, the instruments of security, or
any other documents executed in connection therewith to the contrary, the
Borrower hereby expressly waives its statutory right under Section 57.105(2) of
the Florida Statutes to receive attorneys' fees in any cause of action or other
litigation based in whole or in part, directly or indirectly, upon the foregoing
documents. Such waiver by the Borrower constitutes a material inducement for the
Lender to make the Loan to the Borrower.
Set Off. The Obligors shall have no right of set off against the
Lender under this Note or under any instruments securing this Note or executed
in connection with the Loan evidenced hereby. The Lender, however, shall have
the right, immediately and without further action by it, to set off against this
Note all money owed by the Lender in any capacity to each or any Obligor,
whether or not due.
Signed for Identification
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
The President of Aerosonic Corporation
5
Waiver of Jury Trial. Borrower hereby voluntarily and irrevocably
waives the right to a trial by jury in connection with any litigation, action or
cause of action arising out of or by virtue of: (i) this instrument; or (ii) any
other agreement or document executed or contemplated to be in connection with
the loan evidenced or secured hereby, or incident hereto (the "Loan"); or (iii)
any course of conduct, course of dealing, representation, statement or other
action of any party in connection with the Loan. The parties to the Loan have
discussed this waiver, have agreed that it is an essential and material part of
their agreement concerning the Loan, and that no officer or representative of
Xxxxxx has the authority to modify, orally or in writing, the terms of this
paragraph. This agreement shall be binding on the Borrower, and, if applicable,
on all Obligors as defined herein, and constitutes a material inducement for
Lender entering into the Loan transaction.
Florida Law. This Note is executed under seal and constitutes a
contract under the laws of the State of Florida, and shall be enforceable in a
Court of competent jurisdiction in the State of Florida and/or the State of
Virginia (as determined by Xxxxxx), regardless of the State in which this Note
is being executed.
Headings. The headings of the paragraphs contained in this Note are
for convenience of reference only and do not form a part hereof and in no way
modify, interpret or construe the meaning of the parties hereto.
Identification. This Note consists of eight (8) pages, all but the
last three (3) of which have been signed only for identification by the
President of Aerosonic Corporation.
THE UNDERSIGNED ACKNOWLEDGE THAT THE LOAN EVIDENCED HEREBY IS FOR
COMMERCIAL PURPOSES ONLY AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
Signed, sealed and delivered
in the presence of:
AEROSONIC CORPORATION, a Delaware
corporation authorized to do business in the
State of Florida
/s/ X. X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------ ----------------------------------------
X. X. Xxxxxxx Xxxxx X. Xxxxxxx, Its President
/s/ Xxxxx Xxxxxxx (CORPORATE SEAL)
------------------------------
As to Borrower Xxxxx Xxxxxxx
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AVIONICS SPECIALTIES, INC., a Virginia
corporation
/s/ X.X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------------- ----------------------------------------
X.X. Xxxxxxx Xxxxx X. Xxxxxxx, Chairman of the Board
/s/ Xxxxx Xxxxxxx (CORPORATE SEAL)
--------------------------------
As to Borrower Xxxxx Xxxxxxx
STATE OF Virginia )
COUNTY OF Albemarle )
The foregoing instrument was acknowledged before me this 17th day of
May, 1994, by XXXXX X. XXXXXXX, the President of AEROSONIC CORPORATION, a
Delaware corporation authorized to do business in the State of Florida, on
behalf of the corporation, who is personally known to me or who has produced
(TYPE OF IDENTIFICATION: _______________________) as identification.
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
SIGNATURE
Xxxxx X. Xxxxxx
--------------------------------------------
NAME LEGIBLY PRINTED.
TYPEWRITTEN OR STAMPED
(SEAL) NOTARY PUBLIC
My Commission Expires:
MY COMMISSION EXPIRES JAN. 31, 1997
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STATE OF Virginia )
COUNTY OF Albemarle )
The foregoing instrument was acknowledged before me this 17th day of
May, 1994, by XXXXX X. XXXXXXX, the Chairman of the Board of AVIONICS
SPECIALTIES, INC., a Virginia corporation, on behalf of the corporation, who is
personally known to me or who has produced (TYPE OF IDENTIFICATION:
_______________________________) as identification.
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
SIGNATURE
Xxxxx X. Xxxxxx
--------------------------------------------
NAME LEGIBLY PRINTED.
TYPEWRITTEN OR STAMPED
(SEAL) NOTARY PUBLIC
My Commission Expires:
MY COMMISSION EXPIRES JAN. 31, 1997
8
