Exhibit 10
[Crestar logo]
Commercial Note
(Virginia)
Xxxxx & Xxxxxxxxxxxx, Inc. June 13, 1997
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Borrower Date
Five Million===================================================== Dollars
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Loan Amount
($ 5,000,000.00) Xxxxx X. Xxxxxx #1332022
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Officer Account No. Note No. [X] Original [ ] Renewal
For Value Received, the undersigned (whether one or more) jointly and severally
promise to pay to the order of Crestar Bank (the "Bank") at any of its offices,
or at such place as the Bank may in writing designate, without offset and in
immediately available funds, the Loan Amount shown above, including or plus
interest, and any other amounts due, upon the terms specified below.
IMPORTANT NOTICE
THIS INSTRUMENT CONTAINS A CONFESSION OF JUDGMENT PROVISION WHICH CONSTITUTES A
WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE AS A DEBTOR AND ALLOWS THE CREDITOR TO
OBTAIN A JUDGMENT AGAINST YOU WITHOUT ANY FURTHER NOTICE.
Repayment Terms
[ ] Demand Principal on demand, plus interest as described below.
[ ] Time-- One payment due on , . The undersigned agree to
Discounted the deduction of interest from proceeds or to the payment
of interest in advance.
Net Proceeds: $ Interest Amount: $
[ ] Time-Not One payment due on , , plus interest
Discounted and any other amounts due.
[ ] Term--Fixed In consecutive instalments of principal
Payment and interest of $ each, payable on the
day of each , beginning , and a
final payment equal to the unpaid balance of principal plus
interest and any other amounts owed due on , .
[ ] Term-- In consecutive instalments of principal of
Variable $ each, plus interest, payable on the day of
Payment each , beginning , , and a
final payment of $ plus interest and any other amounts
owned due on , .
[X] Master This is: [ ] a closed end transaction; you may borrow up to
Borrowing the Loan Amount but may not reborrow amounts that have been
Note repaid.
[X] an open end revolving line of credit; you may
borrow an aggregate principal amount up to the Loan
Amount outstanding at any one time.
Principal on demand, plus interest as described below, but the
undersigned shall be liable for only so much of the Loan Amount
shown above as shall be equal to the total advanced to or for
the undersigned, or any of them, by the Bank from time to time,
less all payments made by or for the undersigned and applied by
the Bank to principal, plus interest on each such advance, and
any other amounts due all as shown on the Bank's books and
records, which shall be prima facie evidence of the amount owed.
This Master Borrowing arrangement will terminate upon written
notice from the Bank to the undersigned, or if such notice is
not sooner given, from the date of this Note,
unless an alternative termination date is indicated in the
Agreement, as defined below.
[X] Additional Terms And Conditions
This Note is governed by additional terms and conditions contained in a Letter
Agreement between the undersigned and the Bank dated June 13, 1997 and any
modifications, renewals, extensions or replacements thereof (the "Agreement"),
which is incorporated herein by reference. In the event of a conflict between
any term or condition contained in this Note and in the Agreement, such term or
condition of the Agreement shall control.
If this Note is payable on demand, the Bank shall have the right to demand
payment at any time even if an event of default (as identified herein) has not
occurred.
Interest
[X] Accrued interest will be payable on the last day of each month, beginning
on June 30, 1997. Interest on a Fixed Payment Term Loan will accrue on a 30/360
basis. On all other loan types, interest will accrue daily on an actual/360
basis (that is, on the actual number of days elapsed over a year of 360 days)
unless otherwise stated here:
Each scheduled payment made on this Note shall be applied to accrued interest
before it is applied to principal. Interest shall accrue from the date of this
Note on the unpaid balance and shall continue to accrue after maturity, whether
by acceleration or otherwise, until this Note is paid in full. If this is a
variable rate transaction, the interest rate is prospectively subject to
increase or decrease without prior notice, and if this is a Variable Payment
Term Loan, adjustments in the payment schedule will be made as necessary.
Subject to the above, interest per annum payable on this Note (the "Rate") shall
be:
[ ] % fixed for the term of the loan
[X] a variable rate based on the following Index:
[X] Prime Rate as established from time to time by Crestar Bank.
[ ] Prime Rate as published (lowest published if two) from time to time by
[ ]
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The "Prime Rate" is a reference for fixing the lending rate for commercial
loans. The Prime Rate is a reference rate only and does not necessarily
represent the lowest rate of interest charged for commercial borrowings. If the
Index is a Crestar Prime Rate, the Index rate is subject to increase or decrease
at the sole option of the Bank.
The Rate shall be [X] the Index
[ ] the Index plus %.
[ ] % of the Index plus %.
[ ]
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Adjustments to the Rate shall be effective:
[X] as of the date the Index changes.
[ ]
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[ ] Rate Call Option: Notwithstanding any provision in this Note, the Bank
reserves the right to adjust the Rate on each annual anniversary
date of this Note and the undersigned agree to pay interest at such adjusted
interest rate.
Collateral
Unless otherwise agreed in writing, any collateral pledged to the Bank to secure
any of the undersigned's existing or future liabilities to the Bank shall
secure this Note. To the extent permitted by law, each of the undersigned grants
to the Bank a security interest in and a lien upon all deposits or investments
maintained by the undersigned with, and all indebtedness owed to the undersigned
by, the Bank.
This Note is also secured by the following collateral and proceeds thereof:
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UNSECURED
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All of the foregoing security is referred to collectively as the "Collateral".
The Collateral is security for the payment of this Note and any other liability
(including overdrafts and future advances) of the undersigned to the Bank,
however evidenced, now existing or hereafter incurred, matured or unmatured,
direct or indirect, absolute or contingent, several, joint, or joint and
several, including any extensions, modifications or renewals. The proceeds of
any Collateral may be applied against the liabilities of the undersigned to the
Bank in such order as the Bank deems proper.
CRE-0261 VA COR (11/96) (To be used for Virginia CL transactions only)
Loan Purpose and Updated Financial Information Required
The undersigned warrant and represent that the loan evidenced by this Note is
being made solely for the purpose of acquiring or carrying on a business,
professional or commercial activity or acquiring real or personal property as an
investment (other than a personal investment) or for carrying on an investment
activity (other than a personal investment activity). The undersigned agree to
provide to the Bank updated financial information, including, but not limited
to, tax returns, current financial statements in form satisfactory to the Bank,
as well as additional information, reports or schedules (financial or
otherwise), all as the Bank may from time to time request.
Default, Accelaration and Setoff
Any one of the following shall constitute an event of default under the terms of
this Note: (1) the failure to make when due any instalment or other payment,
whether of principal, interest, late charges or other authorized charges due
under this Note, or the failure to pay the amount demanded by the Bank if this
Note is payable on demand; (2) the death, dissolution, merger, acquisition,
consolidation or termination of existence of the undersigned, any guarantor of
the indebtedness of any of the undersigned to the Bank, any endorser, or any
other party to this Note (collectively called a "Party"); (3) the insolvency or
inability to pay debts as they mature of any Party, or the application for the
appointment of a receiver for any Party or the filing of a petition under any
provision of the Bankruptcy Code or other insolvency law, statute or proceeding
by or against any Party or any assignment for the benefit of creditors by or
against any Party; (4) the entry of a judgment against any Party or the issuance
or service of any attachment, levy or garnishment against any Party or the
property of any Party, or the repossession or seizure of property of any Party;
(5) a determination by the Bank that it deems itself insecure or that a material
adverse change in the financial condition of any Party or decline or
depreciation in the value or market value of any Collateral has occurred since
the date of this Note or is reasonably anticipated; (6) the failure of any Party
to perform any other obligation to the Bank under this Note or under any other
agreement with the Bank; (7) the occurrence of an event of default with respect
to any existing or future indebtedness of any Party to the Bank or any other
creditor of the Party; (8) a material change in the ownership, control or
management of any Party that is an entity, unless such change is approved by the
Bank In its sole discretion; (9) if any Party gives notice to the Bank
purporting to terminate such Party's obligations under or with respect to this
Note; (10) the sale or transfer by a Party of all or substantially all of such
Party's assets other than in the ordinary course of business; or (11) any Party
commits fraud or makes a material misrepresentation at any time in connection
with this Note. If an event of default occurs, or in the event of non-payment of
this Note in full at maturity, the entire unpaid balance of this Note shall, at
the option of the Bank, become immediately due and payable, without notice or
demand. Upon the occurrence or an event of default, the Bank shall be entitled
to interest on the unpaid balance at the stated Rate plus 2.00% (the "Default
Rate"), unless otherwise required by law, until paid in full. To the extent
permitted by law, upon default, the Bank will have the right, in addition to all
other remedies permitted by law, to set off the amount due under this Note or
due under any other obligation to the Bank against any and all accounts, whether
checking or savings or otherwise credits, money, stocks, bonds or other security
or property of any nature whatsoever on deposit with, held by, owed by, or in
the possession of, the Bank or any of its affiliates to the credit of or for the
account of any Party, without notice to or consent by any Party. The remedies
provided in this Note and any other agreement between the Bank and any Party are
cumulative and not exclusive of any remedies provided by law.
Capital Adequacy
Should the Bank, after the date hereof, determine that the adoption of any law
or regulation regarding capital adequacy, or any change in the interpretation or
administration thereof, has or would have the effect of reducing the Bank's rate
of return hereunder to a level below that which the Bank could have achieved but
for such adoption or change, by an amount which the Bank considers to be
material, then, from time to time, 30 days after written demand by the Bank, the
undersigned shall pay to the Bank such additional amounts as will compensate the
Bank for such reduction. Each demand by the Bank shall be made in good faith and
shall be accompanied by a certificate claiming compensation under this paragraph
and stating the amounts to be paid to it hereunder and the basis therefor.
Late Charges And Other Authorized Charges
If this is an Instalment-Simple loan, if any portion of a payment is at least
seven (7) days past due, the undersigned agree to pay a late charge of 5% of the
amount which is past due. On all other loan types, the undersigned agree to pay
such late charge if any portion of a payment is at least ten (10) days past due.
Unless prohibited by applicable law, the undersigned agree to pay the fee
established by the Bank from time to time for returned checks if a payment is
made on this Note with a check and the check is dishonored for any reason after
the second presentment. In addition, as permitted by applicable law, the
undersigned agree to pay the following: (1) all expenses, including, without
limitation, any and all court or collection costs, and attorneys' fees of 25% of
the unpaid balance of this Note, or actual attorneys' fees if in excess of such
amount, whether suit be brought or not, incurred in collecting this Note; (2)
all costs incurred in evaluating, preserving or disposing of any Collateral
granted as security for the payment of this Note, including the cost of any
audits, appraisals, appraisal updates, reappraisals or environmental inspections
which the Bank from time to time in its sole discretion may deem necessary; (3)
any premiums for property insurance purchased on behalf of the undersigned or on
behalf of the owner(s) of the Collateral pursuant to any security instrument
relating to the Collateral; (4) any expenses or costs incurred in defending any
claim arising out of the execution of this Note or the obligation which it
evidences, or otherwise involving the employment by the Bank of attorneys with
respect to this Note and the obilgations it evidences; and (5) any other charges
permitted by applicable law. The undersigned agree to pay such authorized
charges on demand or, at the Bank's option, such charges may be added to the
unpaid balance of the Note and shall accrue interest at the stated Rate. Upon
the occurrence of an event of default, interest shall accrue at the Default
Rate.
Waivers
The undersigned and each other Party waive presentment, demand, protest, notice
of protest and notice of dishonor and waive all exemptions, whether homestead or
otherwise, as to the obligations evidenced by this Note. The undersigned and
each other Party waive any rights to require the Bank to proceed against any
other Party or person or any Collateral before proceeding against the
undersigned or any of them, or any other Party, and agree that without notice to
any Party and without affecting any Party's liability, the Bank, at any time or
times, may grant extensions of the time for payment or other indulgences to any
Party or permit the renewal or modification of this Note, or permit the
substitution, exchange or release of any Collateral for this Note and may add or
release any Party primarily or secondarily liable. The undersigned and each
other Party agree that the Bank may apply all monies made available to it
from any part of the proceeds of the disposition of any Collateral or by
exercise of the right of setoff either to the obligations under this Note or to
any other obligations of any Party to the Bank, as the Bank may elect from time
to time. The undersigned also waive any rights afforded to them by Sections
49-25 and 49-26 of the Code of Virginia of 1950 as amended.
TO THE EXTENT LEGALLY PERMISSIBLE, THE UNDERSIGNED WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY LITIGATION RELATING TO TRANSACTIONS UNDER THIS NOTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE.
Judgment By Confession
The undersigned hereby duly constitute and appoint Xxxx X. Xxxxxxx or Xxxxx X.
Xxxxxxxx as the true and lawful attorney-in-fact for them in any or all of their
names, place and stead, and upon the occurrence of an event of default, to
confess judgment against them, or any of them, in the Circuit Court for the City
or County of Richmond, Virginia, upon this Note and all amounts owed hereunder,
including all costs of collection, attorneys' fees equal to 25% of the unpaid
principal balance hereof and court costs, hereby ratifying and confirming the
acts of said attorney-in-fact as if done by themselves, expressly waiving
benefit of any homestead or other exemption laws.
Severability, Amendments And No Waiver By Bank
Any provision of this Note which is prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Note. No amendment, modification,
termination or waiver of any provision of this Note, nor consent to any
departure by the undersigned from any term of this Note, shall in any event be
effective unless it is in writing and signed by an authorized employee of the
Bank, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. If the interest Rate is
tied to an external index and the index becomes unavailable during the term of
this loan, the Bank may designate a substitute index with notice to the
Borrower. No failure or delay on the part of the Bank to exercise any right,
power or remedy under this Note shall be construed as a waiver of the right to
exercise the same or any other right at any time.
Liability, Successors And Assigns And Choice of Law
Each of the undersigned shall be jointly and severally obligated and liable on
this Note. This Note shall apply to and bind each of the undersigned's heirs,
personal representatives, successors and assigns and shall inure to the benefit
of the Bank, its successors and assigns. This Note shall be governed by the
internal laws of the Commonwealth of Virginia and applicable federal law. The
undersigned agree that certain material events and occurrences relating to this
Note bear a reasonable relationship to the Commonwealth of Virginia. The
validity, terms, performance and enforcement of this Note shall be governed by
applicable federal law and the internal laws of the Commonwealth of Virginia
which are applicable to agreements which are negotiated, executed, delivered and
performed solely in the Commonwealth of Virginia.
By signing below, the undersigned agree to the terms of this Note.
Xxxxx & Xxxxxxxxxxxx, Inc.
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Borrower Signature Borrower
By /s/ Xxxx X. Xxxxxxxx
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Borrower Signature Signature
Xxxx X. Xxxxxxxx Vice President & CFO
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Borrower Signature Name and Title
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Borrower Signature -------------------------------------
Borrower
By
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Signature
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Name and Title
By signing below, the following Endorsers each agree to be bound by all the
terms of this Note.
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Endorser Name, Printed or Typed Endorser Signature
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Endorser Name, Printed or Typed Endorser Signature
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Endorser Name, Printed or Typed Endorser Signature
Disbursement of Proceeds - For Bank Use Only------------------------------
Master Note Borrowing Facility
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(VA-2) Total $ 5,000,000.00
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