Exhibit 10(i)
PROMISSORY NOTE AND LOAN AGREEMENT
Borrower: XX Xxxxxxx Financial Services, Inc.
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx
Lender: Wilmington Trust Company
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx
I. LOAN TERMS
1.1. PROMISE TO PAY. XX Xxxxxxx Financial Services, Inc.
("Borrower") promises to pay to Wilmington Trust Company
("Lender") the principal amount of Two Million Five Hundred
Thousand and 00/100 Dollars ($2,500,000) or so much as may be
outstanding, together with interest on the unpaid outstanding
principal balance of each advance (the "Loan"). Interest shall
be calculated from the date of each advance until repayment of
each advance.
1.2. LINE OF CREDIT. This Note and Loan Agreement ("Note")
evidences a revolving line of credit for the maximum amount of
Two Million Five Hundred Thousand and 00/100 Dollars
($2,500,000.00). The unpaid principal balance owing on this Note
at any time may be evidenced by Lender's internal records which
will be provided to Borrower from time to time upon Borrower's
request, including daily computer print-outs. Lender will have
no obligation to advance funds under this Note if Borrower has
failed to comply with the covenants of Section III or if the
Borrower is in default under the terms of Section IV of this
Note, or any agreement that Borrower has with Lender, including
any agreement made in connection with the signing of this Note.
1.3. PAYMENT. Borrower will pay all outstanding principal
plus all accrued and unpaid interest under this Loan on December
31, 2002. In addition, Borrower will pay regular monthly
payments of accrued and unpaid interest in arrears beginning
January 15, 1996, and all subsequent interest payments are due on
the same day of each month after that. Interest on this Note is
computed on a 365/360 simple interest basis; that is, by applying
the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by
the actual number of days the principal balance is outstanding.
Borrower will make all payments to Lender at Lender's address
shown above or at such other place as Lender may designate in
writing. Unless otherwise agreed or required by applicable law,
payment will be applied first to accrued unpaid interest, then to
principal, and any remaining amount to any unpaid collection
costs and late charges.
1.4. VARIABLE INTEREST RATE. The interest rate on this Note
is subject to change from time to time based on changes in an
index which is the WILMINGTON TRUST COMPANY'S NATIONAL COMMERCIAL
RATE (the "Index"). The Index is not necessarily the lowest rate
charged by Lender on its loans and is set by Lender in its sole
discretion. If the Index becomes unavailable during the term of
this loan, Lender will utilize the prime lending rate as
published in the Wall Street Journal. Lender will tell Borrower
the current Index rate upon Borrower's request. Borrower
understands that Lender may make loans based on other rates as
well. The interest rate change will not occur more often than
each day. The Index currently is 8.50% per annum. The interest
rate to be applied to the unpaid principal balance of this Note
will be at a rate equal to the Index, resulting in an initial
rate of 8.50% per annum. NOTICE: Under no circumstances will
the interest rate on this Note be more than the maximum rate
allowed by applicable law.
1.5. PREPAYMENT. Borrower may prepay from time to time in
whole or in part without penalty or premium all or a portion of
the amount owed earlier than it is due. Early payments will not,
unless agreed to by Lender in writing, relieve Borrower of
Borrower's obligation to continue to make payments of accrued
unpaid interest on the principal which remains outstanding.
Rather, they will reduce the principal balance due.
1.6. LATE CHARGE. If a payment is not made within 15 days
of the date such payment becomes due, Borrower will be charged
5.000% of the unpaid portion of the regularly scheduled payment
or $5.00, whichever is greater.
1.7. NOTICE AND MANNER OF ADVANCES. Borrower shall give
Lender at least two business days' written notice of any request
for advances under this Note. Such notice shall constitute an
affirmative representation that Borrower is not in default of
this Agreement and that Borrower is in compliance with all of the
covenants in Section III hereof. Such Advances hereunder will
be made in immediately available funds by crediting the amount
thereof to the Borrower's account with the Wilmington Trust
Company.
Advances under this Note may be requested in writing by
Borrower or by an Authorized Person (as defined below). All
communications, instructions, or directions by telephone or
otherwise to Lender are to be directed to Lender's office shown
set forth in Section 5.1. The following party or parties are
authorized to request advances under the line of credit until
Lender receives from Borrower written notice of revocation of
their authority and\or the designation of the appointment of
other authorized persons: Xxxx Xxxxx and Xxxxxxxx Xxxxx
(individually, an "Authorized Person"). Borrower agrees to be
liable for all sums either: (a) advanced in accordance with the
instructions of an Authorized Person; or (b) credited to any of
Borrower's accounts with Lender upon the instructions of an
Authorized Person.
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1.8. STOCK WARRANTS. As additional consideration for
Lender's obligations hereunder, Borrower is providing Lender with
common stock warrants issued on the date hereof (the "Warrants").
Such warrants shall be exercisable according to their terms.
1.9. BOARD REPRESENTATION. As further consideration for the
Loan described herein, Borrower agrees to use its best efforts to
cause the Board of Directors of Borrower to include one
representative of the Lender, or representation equal to 10% of
the Board, whichever is greater, for such time as it holds the
Warrants or owns more than 4.9% of the common shares of Borrower.
1.10 MARKETING AGREEMENT. As further consideration for the
Loan described herein, Borrower has entered into a Marketing
Agreement with Wilmington Trust Company, dated the date hereof
(the "Marketing Agreement"), to market certain products of
Wilmington Trust Company.
II. BORROWER'S REPRESENTATIONS AND WARRANTIES
2.1. ORGANIZATION AND STANDING. Each of Borrower and its
Subsidiaries is a corporation duly organized, validly existing,
and in good standing under the laws of its state of incorporation
and is duly qualified to do business in each jurisdiction in
which the conduct of its business requires such qualification and
would be materially and adversely affected in the absence
thereof. Borrower and each of its Subsidiaries is in compliance
with all applicable law and regulations governing the conduct of
their respective businesses and governing consummation of the
transactions contemplated herein, except for any such failures to
so comply that will or do not, singly or in the aggregate, have a
material adverse effect on the business, assets, financial
conditions, operations, or prospects of Borrower and the
Subsidiaries taken as a whole. For the purposes of this
Agreement, a corporation or entity shall be considered to be a
"Subsidiary" of the Borrower if the Borrower owns shares of stock
or other ownership interests having the voting power (other than
stock or other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of
the directors of such corporation, or other persons performing
functions for such entity are owned, directly or indirectly, by
Borrower.
2.2. CORPORATE POWER AND AUTHORITY. The execution,
delivery, and performance hereof by Borrower are within its
corporate powers, have been duly authorized by all necessary
corporate action, and are not in contravention of law or the
terms of its Restated Articles of Incorporation or Bylaws or any
amendment thereto, or any indenture, agreement, or undertaking to
which Borrower is a party or by which it is bound.
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2.3. VALID AND BINDING OBLIGATION. This Agreement
constitutes the legal, valid, and binding obligations of
Borrower, enforceable in accordance with their respective terms,
subject to applicable bankruptcy and insolvency laws and laws
affecting creditors' rights and the enforcement thereof
generally.
2.4. NO LEGAL BAR. The execution, delivery, and performance
of this Agreement, and the borrowing contemplated by this
Agreement do not and will not violate any Requirement of Law or
any contractual obligation of Borrower and will not result in, or
require, the creation or imposition of any lien on any of its
properties or revenues pursuant to any Requirement of Law or any
contractual obligation, which violation or lien would have a
material adverse effect on the business, assets, financial
condition, operations, or prospects of Borrower. For the
purposes of this Section, "Requirement of Law" means the Restated
Articles of Incorporation and Bylaws or other organizational or
governing documents of a given entity and any law, treaty, rule
or regulation, or determination of any arbitrator or court or
other governmental authority, in each case applicable to or
binding upon such entity or any of its property or to which such
entity or any of its property is subject.
2.5. LITIGATION. There is not now pending against Borrower
or any of its Subsidiaries, nor to the knowledge of the officers
of Borrower or any of its Subsidiaries is there threatened by
written communication, any litigation, investigation, or
proceeding the outcome of which would, in any case or in the
aggregate, materially and adversely affect the assets or
financial condition of Borrower and any of its Subsidiaries,
taken as a whole, or seriously affect their continued material
operations, except as disclosed in public filings of Borrower
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, or as otherwise specifically disclosed to Lender in
writing.
2.6. CONSENT OR FILING. No consent, approval, or
authorization of, any court, any governmental body or authority,
or any other person or entity is required in connection with the
valid execution, delivery, or performance of this Agreement or
any document required by this Agreement or in connection with any
of the transactions contemplated thereby.
2.7. DISCLOSURE. No representation or warranty made by
Borrower in this Agreement, in any of the other Loan Documents,
or in any other document furnished in connection herewith or
therewith contains any misrepresentation of a material fact or
omits to state any material fact necessary to make the statements
herein or therein not misleading with respect to any material
facts. There is no fact known to the Borrower (and not known to
Lender) that materially and adversely affects, or that in the
future could reasonably be expected to materially and adversely
affect, the business, assets, financial condition, operations, or
prospects of Borrower.
III. BORROWER'S COVENANTS
3.1. INDEBTEDNESS. Neither Borrower nor any of its
Subsidiaries, without prior written consent of Lender, will
create, incur, assume, or suffer to exist liability for,
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contingently or otherwise (including, without limitation, any
guaranty of the indebtedness of another person), any indebtedness
for borrowed money if Borrower's consolidated debt to equity
ratio, determined in accordance with GAAP but after giving effect
to such indebtedness and (whether or not in accordance with GAAP)
treating any guaranty of the indebtedness of another person as an
indebtedness of Borrower in the amount covered by such guaranty,
shall be greater than 3 to 1, except that the following shall be
permitted in any event and shall not be included in the
calculation of the above debt to equity ratio:
(a) current indebtedness of Borrower to Xxxxxx CMG,
Inc.;
(b) unsecured current liabilities incurred with trade
creditors in the ordinary course of business other than those
which are for money borrowed or are evidenced by bonds,
debentures, notes or other similar instruments;
(c) Money borrowed from banks or other financial
institutions in the ordinary course of business and solely for
the purpose of purchasing securities for the account of (i) any
Subsidiary of Borrower that is registered as a broker/dealer
under the Securities Exchange Act of 1934, as amended, or (ii)
customer margin accounts of any such subsidiary;
(d) notes or similar written instruments executed in
the ordinary course of business and solely for the purpose of
providing fidelity bond insurance and insurance of customer
accounts in excess of the coverage provided by the Securities
Investor Protection Corporation (SIPC); and
(e) purchase money mortgage obligations incurred in
the ordinary course of business that do not exceed $1,000,000 in
the aggregate of Borrower and its Subsidiaries, on a consolidated
basis, at any time.
For purposes of this Section 3.1, equity and
shareholder's equity shall include all preferred stock, whether
redeemable or nonredeemable, regardless of such preferred stock's
treatment under GAAP.
3.2. MINIMUM SHAREHOLDERS' EQUITY. During the term of this
Note, shareholder equity, excluding outstanding preferred stock,
and calculated for each fiscal quarter end period, shall not be
less than a sum equal to $7,000,000, plus 30% of net income for
all fiscal quarter end periods, plus 75% of net proceeds from
common stock equity issuances.
3.3. MINIMUM EARNINGS. During the term of this Note,
Borrower's reported net income, as defined by GAAP, plus
amortization expenses reported for the amortization of intangible
expenses associated with the acquisition of assets or equity, for
any four quarters within any consecutive six quarterly periods
of time, shall in the aggregate exceed $1,500,000 for such four
quarters taken together.
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3.4 MAINTENANCE OF BROKERAGE BUSINESS. During the term of
this Note, Borrower will continue to operate retail securities
brokerage offices through locations owned by Borrower's
affiliates, and through independently owned offices which are
correspondents of an affiliate of Borrower, and such business
will remain a substantial part of Borrower's corporate strategy
for growth.
3.5. KEY MAN LIFE INSURANCE. During the term of this Note
or any extension thereof, Borrower agrees to maintain key man
life insurance on Xxxxxxxx Xxxxx in the amount of $1,000,000.
Such insurance policy shall name Lender as beneficiary and such
policy shall only be cancelable upon 30 days written notice to
Lender.
3.6. CORPORATE EXISTENCE AND QUALIFICATION. Borrower shall
do, or cause to be done, all things necessary to preserve, renew,
and keep in full force and effect its corporate existence and the
corporate existence of its wholly-owned Subsidiaries Corporate
Securities Group, Inc., XX Xxxxxxx Securities, Inc., and XX
Xxxxxxx Clearing Corp. (collectively, the "Principal
Subsidiaries') and their respective rights, licenses, and
permits; shall comply, and cause the Principal Subsidiaries to
comply, with all material laws applicable to it, operate it and
the Principal Subsidiaries' business in a proper manner and
substantially as presently operated or proposed to be operated;
and at all times shall maintain, preserve, and protect its
franchises and trade names and preserve its property used or
useful in the conduct of its or the Principal Subsidiaries'
business, and keep the same in good repair, working order, and
condition, and from time to time make, or cause to be made, all
needful and proper repairs, renewals, replacements, betterments,
and improvements thereto, so that the business carried on in
connection therewith may be properly and advantageously conducted
at all times.
3.7. FINANCIAL STATEMENTS; SEC REPORTS. Borrower shall keep
its books of account in accordance with GAAP and shall furnish to
Lender within 120 days after the close of its fiscal year a
balance sheet as of the close of such year, and statements of
income and retained earnings and statements of cash flows for
such year. Such statements shall be consolidated statements of
Borrower and its Subsidiaries and shall be audited and certified
by Borrower's independent public accountants. Within 60 days
after each fiscal quarter, Borrower shall furnish to Lender a
balance sheet and income statement certified by the chief
financial officer of Borrower. Borrower, with reasonable
promptness, shall furnish to Lender such other data as Lender may
reasonably request and will at all times and from time to time
permit Lender by or through any of its officers, authorized
agents, employees, attorneys, or accountants to inspect and make
extracts from Borrower's books and records.
Borrower shall also furnish Lender, within five (5) days of
the filing or delivery described below, a copy of all reports on
Forms 10-K, 10-Q and 8-K, and of all proxy statements and annual
or quarterly reports to shareholders, that Borrower files with
(or is required to deliver to) the Securities and Exchange
Commission pursuant to applicable provisions of the Securities
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Exchange Act of 1934, as amended, or regulations promulgated
thereunder.
3.8. TAXES AND CLAIMS. Borrower shall promptly pay and
discharge and shall cause its Subsidiaries to promptly pay and
discharge; (a) all taxes, assessments, and governmental charges
upon or against Borrower, its Subsidiaries, or their assets,
including payroll taxes, prior to the date on which penalties
attach thereto, unless and to the extent that such taxes are
being diligently contested in good faith and by appropriate
proceedings and appropriate reserves therefor have been
established; and (b) all lawful claims, whether for labor,
materials, supplies, services, or anything else that reasonably
might or could, if unpaid, become a lien or charge upon the
properties or assets of Borrower or its Subsidiaries unless and
to the extent only that the same are transferred to bond, being
diligently contested in good faith and by appropriate
proceedings, and appropriate reserves therefor have been
established.
3.9. BOOKS AND RECORDS. Borrower shall: (a) maintain at
all times true and complete books, records, and accounts in which
true and correct entries shall be made of its transactions in
accordance with GAAP; and (b) by means of appropriate quarterly
entries reflected in its accounts and in all financial statements
furnished pursuant to Section 3.7 of this Agreement, establish
proper liabilities and reserves for all taxes and proper
reserves, for depreciation, renewal and replacement,
obsolescence, and amortization of its properties and bad debts,
all in accordance with GAAP.
3.10. INSPECTION BY LENDER; AUDITS. Borrower shall allow
any authorized representative of Lender to visit and inspect any
of the properties of Borrower and its Subsidiaries, to examine
the books of account and other records and files of Borrower or
any of its Subsidiaries, to make copies thereof and to discuss
the affairs, business, finances, and accounts of Borrower or any
of its Subsidiaries with its officers and employees, all at such
reasonable times and as often as Lender may reasonably request.
3.11. PAY INDEBTEDNESS TO LENDER AND PERFORM OTHER
COVENANTS. Borrower shall make full and timely payments of the
principal of and interest on this Note and all other indebtedness
of Borrower to Lender hereunder, whether now existing or
hereafter arising, and duly comply with all the terms and
covenants contained in each of the instruments and documents
given to Lender pursuant to this Agreement (including, but not
limited to, the Warrants and Marketing Agreement ) at the times
and places and in the manner set forth herein.
3.12. LITIGATION. Borrower will promptly notify Lender
upon the commencement of any action, suit, claim, counterclaim,
or proceeding against or investigation of Borrower or any of its
Subsidiaries where the damage claim is in excess of $500,000 or
where the litigation may materially and adversely affect the
Borrower's or any of its Subsidiaries' business (except when the
alleged liability is fully covered by insurance, excluding
application of any standard deductible). If any such action,
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suit, claim, counterclaim, proceeding (where the alleged
liability is not so covered by insurance) involves an amount in
excess of $1,000,000 or where the litigation could reasonably be
expected to materially and adversely affect Borrower's or any of
its Subsidiaries' business, Borrower shall also provide Lender,
upon request, with an opinion of counsel concerning the
litigation or investigation and the probable outcome thereof.
3.13. REGULATORY ENFORCEMENT ACTIONS. Borrower shall
promptly notify Lender of the institution of: any investigation,
any indictment, the filing of any complaint, the issuance of any
cease and desist order or injunction, or the imposition of any
fine or non-monetary sanction, by any civil or criminal, federal
or civil, regulatory enforcement agency, district attorney's
office, attorney general's office or U.S. Attorney's office which
involves Borrower or any of its affiliates and could reasonably
be expected to have a material adverse effect on Borrower or one
of its Subsidiaries. Such notification shall include a
description of the event that led to such action by such
enforcement agency.
3.14. DEFAULTS OR ASSESSMENTS. Borrower shall promptly
notify Lender in writing of: (a) any material assessment by any
taxing authority for unpaid taxes as soon as borrower has
knowledge thereof and shall supply Lender with copies of all
notices from the Internal Revenue Service or any other taxing
authority with respect to any such matter; and (b) any default by
Borrower or any of its Subsidiaries in the performance of (or any
material modification of, or waivers granted in connection with)
any of the terms or conditions contained in any agreement,
mortgage, indenture, or instrument to which Borrower or any of
its Subsidiaries is a party or which is binding upon Borrower,
including, but not limited to, any default in, material
modification of, or waiver granted in connection with, the
Borrower's compliance with any agreement with Xxxxxx CMG, Inc.,
and of any default by Borrower in the payment of any of its
indebtedness which default may, singly or in the aggregate, have
a material adverse effect on the business, assets, financial
condition, operations, or prospects of Borrower and its
Subsidiaries taken as a whole.
3.15. CHANGE OF NAME, PRINCIPAL PLACE OF BUSINESS, ETC.
Borrower shall notify Lender immediately of any change in the
name of Borrower, the principal place of business of Borrower,
the office where the books and records of Borrower are kept, or
any change in the registered agent of Borrower for the purpose of
service process.
3.16. MERGERS, ETC. Without Lender's consent, Borrower
shall not wind up, liquidate or dissolve itself, reorganize,
merge or consolidate with or into, or convey, sell, assign,
transfer, lease, or otherwise dispose of all or substantially all
of its assets to any person.
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IV. DEFAULT, RIGHT TO FUTURE ADVANCES AND REMEDIES UPON DEFAULT
4.1. DEFAULT. Borrower will be in default if any of the
following happens: (a) Borrower fails to make any payment
within five (5) business days after the same becomes due to
Lender hereunder ; (b) Borrower fails to comply with or to
perform when due any other term, obligation, covenant, or
condition contained in this Note or any agreement related to this
Note, including, but not limited to the Warrants and the
Marketing Agreement, or in any other agreement or loan Borrower
has with Lender, and such failure continues for fifteen (15)
business days after written notice to Borrower that Lender
considers such failure to be a default. (c) Borrower defaults
under any loan, extension of credit, security agreement, purchase
or sales agreement, or any other agreement, in favor of any other
creditor, including, but not limited to any default under any
agreements with Xxxxxx CMG, Inc., or any person that may
materially and adversely affect any of Borrower's property or
Borrower's ability to repay this Note or perform Borrower's
obligations under this Note and such default continues for
fifteen (15) business days after written notice to Borrower that
Lender considers such default to be a default hereunder; (d)
Borrower becomes insolvent, a receiver is appointed for any part
of Borrower's property, Borrower makes a general assignment for
the benefit of creditors or any proceeding is commenced either by
Borrower or against Borrower under any bankruptcy or insolvency
laws; (e) Borrower, or any of its affiliates, becomes subject to
any civil or criminal order or decree by any regulatory agency
and that action has a material adverse effect on Borrower, and
Borrower fails to have such action effectively stayed,
discharged, vacated or set aside within thirty (30) days of the
institution of such action; (f) Any representation or statement
made or furnished to Lender by Borrower or on Borrower's behalf
is determined to be false or misleading in any material respect
at the time made or furnished; or (g) A material adverse change
occurs in Borrower's financial condition, or Lender in good faith
reasonably believes the prospect of payment or performance of the
indebtedness is materially impaired, provided that Lender
notifies Borrower in writing of such default and Borrower fails
to cure such default within ten (10) business days of such
notice.
4.2. BORROWER'S RIGHT TO ADVANCES. Borrower shall not be
entitled to any further Advances under the Line of Credit
evidenced by this Note if any of the following happens: (a)
Borrower fails to make any payment after the same becomes due to
Lender hereunder ; (b) Borrower fails to comply with or to
perform when due any other term, obligation, covenant, or
condition contained in this Note or any agreement related to this
Note, including, but not limited to the Warrants and the
Marketing Agreement, or in any other agreement or loan Borrower
has with Lender, (c) Borrower defaults under any loan, extension
of credit, security agreement, purchase or sales agreement, or
any other agreement, in favor of any other creditor, including,
but not limited to any default under any agreements with Xxxxxx
CMG, Inc., or any person that may materially and adversely affect
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any of Borrower's property or Borrower's ability to repay this
Note or perform Borrower's obligations under this Note; (d)
Borrower becomes insolvent, a receiver is appointed for any part
of Borrower's property, Borrower makes a general assignment for
the benefit of creditors or any proceeding is commenced either by
Borrower or against Borrower under any bankruptcy or insolvency
laws; (e) Borrower, or any of its affiliates, becomes subject to
any civil or criminal enforcement order or decree by any
regulatory agency and that action has a material adverse effect
on Borrower; (f) Any representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf is
determined to be false or misleading in any material respect at
the time made or furnished; or (g) A material adverse change
occurs in Borrower's financial condition, or Lender in good faith
reasonably believes the prospect of payment or performance of the
indebtedness is materially impaired. If the conditions
described herein are addressed by the Borrower in such a way that
default under Section 4.1 is avoided or cured, Borrower shall
thereafter be entitled to advances under this Note until the
reoccurrence of a condition described herein.
4.3. LENDER'S RIGHTS. Upon default, as set forth in Section
4.1, Lender may declare the entire unpaid principal balance on
this Note and all accrued unpaid interest immediately due,
without notice, and then Borrower will pay that amount. Upon
default, including failure to pay upon final maturity, Lender, at
its option, may also, if permitted under applicable law, increase
the variable interest rate on this Note to 3.000 percent points
over the Index. The interest rate will not exceed the maximum
rate permitted by applicable law. Lender may hire or pay someone
else to help collect this Note if Borrower does not pay.
Borrower also will pay Lender that amount. This includes,
subject to any limits under applicable law, Lender's reasonable
attorney's fees and Lender's legal expenses whether or not there
is a lawsuit, including reasonable attorneys' fees and legal
expenses for bankruptcy proceedings (including efforts to modify
or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. If not prohibited
by applicable law, Borrower also will pay any court costs, in
addition to all other sums provided by law.
V. MISCELLANEOUS
5.1. NOTICES. Any notice, consent, request, or other
communication to a party required or permitted hereunder shall be
deemed to have been duly given or made (a) on the date delivered
in person, (b) on the date indicated on the return receipt if
mailed postage prepaid, by certified or registered mail, with
return receipt requested, (c) on the date transmitted by
facsimile, if sent by 2:30 P.M. Eastern Time, for purposes of
Advances, and 4:30 P.M. Eastern Time for all other purposes, and
confirmation of receipt thereof is reflected or obtained, or (d)
if sent by Federal Express or other nationally recognized
overnight courier or overnight express U.S. Mail, with service
charges prepaid, then on the next business day after delivery to
the courier of mail (in time for and specifying next day
delivery). Such notices shall be sent to a party at its address
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or facsimile number as follows, unless otherwise designated in
writing:
If to Borrower: XX Xxxxxxx Financial Services, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 000X
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx, CFO
Telecopy No. (000) 000-0000
If to Lender: Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Telecopy No. (000) 000-0000
5.2. RIGHTS AND REMEDIES NOT WAIVED. Lender may delay or
forego enforcing any of its rights or remedies under this Note
without losing them.
5.3. GOVERNING LAW. This Note has been delivered to Lender
and accepted by Lender in the State of Delaware. This Note shall
be governed by and construed in accordance with the laws of the
State of Delaware.
5.4. JURISDICTION. If there is a lawsuit, Borrower agrees
upon Lender's request to submit to the jurisdiction of the courts
of New Castle County, the State of Delaware.
5.5. JURY TRIAL WAIVER. Lender and Borrower hereby waive
the right to any jury trial in any action, proceeding, or
counterclaim brought by either Lender or Borrower against the
other.
5.6. WAIVER OF PRESENTMENT. Borrower and any other person
who signs, guarantees or endorses this Note, to the extent
allowed by law, waive presentment, demand for payment, protest
and notice of dishonor.
5.7. AMENDMENTS. Upon any change in the terms of this Note,
and unless otherwise expressly stated in writing, no party who
signs this Note, whether as maker, guarantor, accommodation maker
or endorser, shall be released from liability. All such parties
agree that Lender may renew or extend (repeatedly and for any
length of time) this loan, or release any party or guarantor or
collateral; and take any other action deemed necessary by Lender
without the consent of or notice to anyone. All such parties
also agree that Lender may modify this loan without the consent
of or notice to anyone other than the party with whom the
modification is made.
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5.8. INTEGRATION. The Note contains the entire agreement
between the parties relating to the subject matter hereof and
supersedes all oral statements and prior writings with respect
thereto.
IN WITNESS WHEREOF, the parties have caused this Note and
Loan Agreement to be executed by their respective duly authorized
officers.
LENDER BORROWER
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxx Xxxxx
Title: Vice President Title: Chief Financial Officer
Date: 1/19/96 Date: 1/19/96
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