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EXHIBIT 10.1
[FIRST UNION LOGO] $750,000.00 MAY 10, 1995
(Date of Execution and Delivery)
LENDER: FIRST UNION NATIONAL BANK OF NORTH CAROLINA (hereinafter termed
"LENDER"), CHARLOTTE PRIVATE, North Carolina
BORROWER($) XXXXX/XXXXXXX PUBLIC FUND LIMITED PARTNERSHIP
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C/O X.X. XXXX INTERNET SERVICES 00000 XXXXXX XXXXX XXXX XXXXXXXXX XXXXXXXXXXX XX 00000-0000
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FOR VALUE RECEIVED: to wit, money loaned, undersigned
BORROWER(S) (hereinafter collectively termed "BORROWER"), jointly and severally
(if more than one BORROWER), promises(s) to pay to the order of LENDER at its
office in the above city, or wherever else LENDER may specify, the sum of SEVEN
HUNDRED, FIFTY THOUSAND DOLLARS AND NO/100 ($750,000.00) DOLLARS, with interest
until paid,
CONTRACT [ ] at the rate of percent (____%);
RATE OF [X] at the rate of LENDER'S PRIME RATE Plus zero percent (0.000%) as that rate
INTEREST may change from time to time with changes to occur on the date the LENDER'S PRIME RATE changes;
[ ] at the rate of__________________________________________________________________________________
to be adjusted____________________________________________beginning_____________________________:
[X] payable in full on May 10, 1996.
with interest payable Monthly commencing on June 1, 1995, and each Month thereafter;
TERMS [ ] payable in consecutive ________________ payments of principal; commencing on
OF ________________ , in ______ equal payments of $_________
PAYMENT plus an irregular payment of $ _________ due on _________,
with interest payable __________ commencing on _____, and each ________ thereafter;
[ ] payable in consecutive _________ payments of principal and interest commencing on
___________, in ___ equal payments of $____________
plus an irregular payment of all remaining principal and interest commencing on ___________;
[ ] see attached Schedule "B", terms of which are incorporated herein by reference;
(TERMS ABOVE NOT COMPLETED ARE DELETED)
together with a late charge of four percent (4%) of each payment past due for
fifteen (15) or more days. If BORROWER fails to make a payment when due,
subsequent payments shall be first applied to the past due payment. If
BORROWER resumes making payments but has not paid all past due payments, then
LENDER will impose a separate late payment charge for each payment that becomes
due until the default is cured.
Further, upon BORROWER'S Default (as hereinafter defined) and where
LENDER deems it necessary or proper to employ an Attorney to enforce collection
of any unpaid balance hereunder, then BORROWER agrees to pay LENDER'S
reasonable Attorney's fees and collection costs. Liability for reasonable
Attorneys fees and costs shall exist whether or not any suit or proceeding is
commenced; BORROWER agrees and stipulates that reasonable Attorney's fees shall
be deemed to be fifteen percent (15%) of the sum of all unpaid principal and
interest due as permitted under the law of the state of LENDER'S office as set
forth herein.
In addition to all other rights contained herein, if the original
principal amount of the loan is more than Three Hundred Thousand and no/100
Dollars ($300,000) the contract rate during any period while the loan is in
Default shall be the interest rate set out above plus three percent (3%)
commencing with and continuing for as long as the loan or any portion thereof
is in Default.
The contract rate of interest shall apply until the Note or any
judgement thereon shall be paid in full.
Interest is computed on the basis of a 360 day year for the actual
number of days in the interest period (Actual/360 Computation) unless indicated
below.
DEFINITION OF LENDER'S PRIME RATE AND COMPUTATION FORMULAE APPEAR ON OTHER SIDE
All payments received during normal banking hours after 2:00 P.M.
shall be deemed received at the opening of the next banking day.
BORROWER'S payment will increase if the scheduled payment amount is
insufficient to pay accrued interest. If the scheduled payment amount is
insufficient to pay accrued interest, the scheduled payment amount shall be
immediately increased as is necessary to pay all accruals of interest for the
period and all accruals of unpaid interest from previous periods. Such
adjustments to the scheduled payment amount shall remain in effect for as long
as the interest accruals shall exceed the original scheduled payment amount and
shall be further adjusted upward or downward to reflect changes in the variable
interest rate. In no event shall the scheduled payment amount be reduced below
the original scheduled payment specified herein.
All payments received during normal banking hours after 2:00 P.M.
shall be deemed received at the opening of the next banking day.
BORROWER'S payment will increase if the scheduled payment amount is
insufficient to pay accrued interest. If the scheduled payment amount is
insufficient to pay accrued interest, the scheduled payment amount shall be
immediately increased as is necessary to pay all accruals of interest for the
period and all accruals of unpaid from previous interest from previous periods.
Such adjustments to the scheduled payment amount shall remain in effect for as
long as the interest accruals shall exceed the original scheduled payment
amount and shall be further adjusted upward or downward to reflect changes in
the variable interest rate. In no event shall the scheduled payment amount be
reduced below the original scheduled payment specified herein.
Each of the undersigned, whether BORROWER, Sureties, or endorsers, and
all others who may become liable for all or any part of the obligations
evidenced and secured hereby, do hereby, jointly and severally: waive
presentment, demand, protest, notice of protest and/or of dishonor, and also
notice of acceleration of maturity on default or otherwise. Further, they
agree that LENDER may, from time to time, extend, modify, amend or renew this
Note for any period (whether or not longer than the original period of the
Note) and grant any releases, compromises or indulgences with respect to the
Note or any extensions, modifications, amendments or renewals thereof or any
security therefor, or to any party liable thereunder or hereunder, all without
notice to or consent of any of the undersigned and without affecting the
liability of the undersigned hereunder.
If this Note is subject to the terms of a Commitment Letter and/or
Loan Agreement, LENDER may advance and readvance under this Note pursuant to
its terms and/or the terms of such other contractual obligations between the
parties, and at the request of BORROWER, LENDER in its sole discretion may make
other advances and readvances under this Note pursuant thereto.
THIS PROMISSORY NOTE IS SUBJECT TO THE ADDITIONAL PROVISIONS, TERMS,
UNDERTAKINGS AND RIGHTS SET FORTH ON THE REVERSE SIDE HEREOF, THE SAME BEING
INCORPORATED HEREIN BY REFERENCE.
IN WITNESS WHEREOF, the Borrower, on the day and year first written
above, has caused this Note to be executed under seal by (i) if a corporation,
adoption of the facsimile seal printed hereon for such special occasion and
purpose (or if an impression seal appears hereon by affixing such impression
seal) by its duly authorized officer(s) or, (ii) if by individuals, hereunto
setting their hand and seals.
CORPORATE BORROWER [SEAL] Name of Corporation
BY:_____________________________________________ By:______________________________________
INDIVIDUAL BORROWER(S), PROPRIETORSHIPS, PARTNERSHIPS By:______________________________________
XXXXX, XXXXXXX PUBLIC FUND LIMITED PARTNERSHIP
/s/ Xxxxxx X. Xxxxxxx, Xx. (Seal) ____________________________________(Seal)
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FSK Limited Partnership, General Partner
Xxxxxx X. Xxxxxxx, Xx. General Partner of FSK Limited Partnership
/s/ Xxxxxx X. Xxxxx (Seal) ____________________________________(Seal)
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DRY Limited Partnership, General Partner
Xxxxxx X. Xxxxx, Xx., General Partner of
Dry Limited Partnership TAXPAYER IDENTIFICATION NUMBER(S)________
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ADDITIONAL PROVISIONS
BORROWER HEREBY FURTHER WARRANTS, COVENANTS, AND AGREES, AS FOLLOWS:
(continued from Front Side hereof):
Anything contained herein to the contrary notwithstanding, if for any
reason the effective rate of interest on this Note should exceed the maximum
lawful rate, the effective rate shall be deemed reduced to and shall be such
maximum lawful rate and any suits of interest which have been collected in
excess of such maximum lawful rate shall be applied as a credit against the
unpaid balance due hereunder.
If the interest provision contained herein refers to "LENDER'S PRIME
RATE" the LENDER'S PRIME RATE shall be that rate announced by LENDER from time
to time as its prime rate and is one of several interest rate bases used by the
LENDER. The LENDER lends at rates both above and below LENDER'S PRIME RATE,
and BORROWER acknowledges that LENDER'S PRIME RATE is not represented or
intended to be the lowest or most favorable rate of interest offered by LENDER.
LENDER'S Actual/360 or 365/360 computation determines the annual
effective interest yield by taking the stated (nominal) interest rate for a
year's period and then dividing said rate by 360 to determine the daily
periodic rate to be applied for each day in the interest period. Application
of such computation produces an annualized effective interest rate exceeding
that of the nominal rate.
BORROWER warrants to LENDER that all balance sheets, financial
statements; profit and loss statements and all other information now or
hereafter furnished to LENDER are and will be true and correct and fairly
reflect the financial condition of BORROWER as of the dates thereof, and that
the most recently provided financial information fairly reflects the current
financial condition of BORROWER.
Each BORROWER waives all claims, direct or indirect, absolute or
contingent, against any other BORROWER, guarantor, endorser or surety arising
from or relating to this Note or such BORROWER's performance hereunder.
Without limiting the foregoing, each BORROWER waives all rights of
reimbursement, exoneration, indemnification and/or contribution from any other
BORROWER, guarantor, endorser or surety under or relating to this NOTE and
waives all right of subrogation to the claims of Bank which may otherwise arise
from such payment.
At LENDER's option, any repayments of this Note, other than by U.S.
currency, will not be credited to the outstanding loan balance until LENDER
receives collected funds.
Upon the occurrence of any of the "EVENTS OF DEFAULT", as hereinafter
defined, LENDER is herewith expressly authorized to exercise its right of
Set-Off or Bank Lien as to any monies deposited in demand, checking, time,
savings or other accounts of any nature maintained in and with it by any of the
undersigned, without advance notice.
BORROWER WILL IMMEDIATELY NOTIFY LENDER in writing of any: (1) change
in BORROWER'S Principal Place of Business and/or Residence; (2) change in the
BORROWER'S name or identity; (3) change in BORROWER'S Corporate Structure; or
(4) material adverse change in BORROWER'S financial statements or financial
affairs.
EVENTS OF DEFAULT
BORROWER shall be in default under this Note, upon the happening of
any of the following events, circumstances or conditions; namely:
(1) Default in the payment or performance of any of the obligations
provided hereunder or in connection herewith or any general partner of BORROWER
or any endorser, guarantor or surety for BORROWER to LENDER or any affiliate of
LENDER, howsoever created primary or secondary, whether direct or indirect,
absolute or contingent, now or hereafter existing, due or to become due, or of
any other covenant, warranty or undertaking expressed herein, therein, or in
any other document establishing said endorsement, guaranty, or surety; or
(2) Any warranty, representation or statement made or furnished to
LENDER by or on behalf of BORROWER, or any Guarantor, in connection with this
Note or to induce LENDER to make a loan or extension or renewal thereof to
BORROWER which was false in any material respect when made or furnished or has
become materially false, if such warranty of BORROWER was ongoing in nature; or
(3) Death, dissolution, termination of existence, insolvency,
business failure, appointment of a receiver, custodian, or trustee for any
part of the property of, assignment for the benefit of creditors by, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or
against BORROWER or any endorser, guarantor, or surety for or any general
partner or majority shareholder of BORROWER; or
(4) The acquisition of substantially all of the business or assets
of BORROWER, or guarantor, endorser, or surety for BORROWER, or a material
portion of such business or assets if such a sale is outside BORROWER'S or
guarantor's, endorser's or surety's ordinary course of business, or more than
50% of its outstanding stock or voting power in a single transaction or a
series of transactions, or acquire substantially all of the business or assets
or more than 50% of the outstanding stock or voting power of any other entity,
or enter into any transaction of merger or consolidation without prior written
consent of LENDER; or
(5) Failure of a corporate BORROWER or endorser, guarantor, or
surety for said BORROWER to maintain its corporate existence in good standing;
or
(6) Upon the entry of any monetary judgment or the assessment
and/or filing of any tax lien against BORROWER or any endorser, surety, or
guarantor; or upon the issuance of any writ of garnishment, judicial seizure
of, or attachment against any property of, debts due or rights of BORROWER or
any endorser, surety or guarantor, to specifically include commencement of any
action or proceeding to seize monies of BORROWER or any endorser, surety or
guarantor on deposit in any bank account with LENDER or
(7) Any BORROWER, endorser, guarantor or surety shall be a debtor,
either voluntarily or involuntarily, under (and as the term debtor is defined
in) the Bankruptcy Code or should any BORROWER, endorser, guarantor or surety be
generally not paying their respective debts as such debts become due; or
(8) Failure of said BORROWER, endorser, guarantor, or sureties to
furnish financial statements or other financial information reasonably
requested by LENDER; or
(9) The assertion or making of any seizure, vesting or
intervention by or under authority of any government by which the management
of BORROWER, or endorser, guarantor or surety is displaced of its authority in
the conduct of its business(es) or its business(es) is curtailed.
Upon the occurrence of any or the foregoing events, circumstances or
conditions of default, all of the obligations evidenced herein and secured
hereby shall, at the option of the LENDER, immediately be due and
payable, without notice.
No waiver, amendments or modifications shall be valid unless in
writing. Further, this Note shall be governed by and construed under the laws
of North Carolina.
BORROWER irrevocably agrees to submit to personal jurisdiction in the
State of North Carolina. Service of process on BORROWER arising out of or
relating to this Promissory Note shall be effective if mailed to BORROWER at
the address first above given or, if applicable, at that address provided to
LENDER pursuant to the terms hereof.
All terms and expressions contained herein which are defined in
Articles 1, 3, or 9 of the Uniform Commercial Code of the State of the
LENDER'S office set forth herein shall have the same meaning herein as in said
Articles of said Code. No waiver by LENDER of any default(s) shall operate as
a waiver of any other default or the same default on a future occasion. All
rights of LENDER hereunder shall inure to the benefit of its successors and
assigns; and all obligations of BORROWER shall bind his heirs, executors,
administrators, successors and/or assigns. If more than one person has signed
this instrument, such parties are jointly and severally obligated hereunder.
Further, use of the masculine pronoun herein shall include the feminine and
neuter and also the plural. If any provision of this instrument shall be
prohibited or invalid under applicable law, such provision shall be ineffective
but only to the extent of such prohibition of invalidity, without invalidating
the remainder of such provision or the remaining provisions of this Note. In
the case of conflict between the terms of this Note and any Commitment Letter
and/or Loan Agreement issued in connection herewith, the priority of
controlling terms shall be first this Note, then the Loan Agreement, then the
Commitment Letter.
(SEE OTHER SIDE FOR SIGNATURES AND SEALS)
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