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EXHIBIT 10.9
SECURED PROMISSORY NOTE
$10,000,000.00 Note No.
Farmington Hills, Michigan
Due Date: March 30, 2001 Dated: As of March 31, 2000
FOR VALUE RECEIVED, on the Due Date, XXXXXXX FINANCIAL SERVICES
CORPORATION, a Michigan corporation, and DYNEX FINANCIAL, INC., a Virginia
corporation, (individually and collectively the "Borrower"), severally, and
jointly and severally promise to pay to the order of MICHIGAN NATIONAL BANK, a
national banking association (the "Bank"), at its office set forth below or at
such other place as Bank may designate in writing, the principal sum of TEN
MILLION AND NO/100 DOLLARS ($10,000,000.00), or such lesser amount as may be
outstanding under the Credit Agreement of even date herewith between Borrower
and Bank (the "Credit Agreement"), plus interest as hereinafter provided, all in
lawful money of the United States of America as follows:
1. The unpaid principal balance of this promissory note ("Note") shall bear
interest computed upon the basis of a year of 360 days for the actual
number of days elapsed in a month, at a per annum rate of interest (the
"Effective Interest Rate") which is equal to 200 basis points (or, 2.00%)
in excess of the Trailing Rate Average LIBOR (as hereafter defined). As
used herein, "Trailing Rate Average LIBOR" means the 30-day trailing
average daily London Interbank Offered Rate for one month U.S. Dollar
denominated deposits offered by major banks in the London, United Kingdom,
market at 11:00 a.m. London Time, as reported by one of the following
sources, selected by Bank on an availability basis, in descending order of
priority: (1) the Dow Xxxxx Telerate System "LIBOR Page" report of such
interest rates as determined by Xxxxxx'x News Service; (2) the Dow Xxxxx
Telerate System "Page 3750" report of such interest rates as determined by
the British Bankers Association; or (3) The Wall Street Journal, Midwest
Edition, report of such interest rate; or (4) any other generally accepted
authoritative source as Bank may reference. The said 30-day trailing
average will be updated by Bank each Business Day by adding the most
recently reported London Interbank Offered Rate on one month U.S. Dollar
deposits and by subtracting the oldest reported rate on said deposits.
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This Note is executed and delivered pursuant to the Credit Agreement,
the terms of which are incorporated herein as if fully set forth herein, and all
capitalized terms not defined herein shall have the meaning ascribed to them in
the Credit Agreement.
As provided in the Credit Agreement, the Borrower may make voluntary
prepayments hereon at any time and in some cases must make mandatory prepayments
hereon.
Advances of principal, repayment, and readvances may be made under this
Note from time to time, but Bank, in its sole discretion, may refuse to make
advances or readvances hereunder during any period(s) this Note is in default.
All advances made hereunder shall be charged to a loan account in Xxxxxxxx's
name on Bank's books, and Bank shall debit to such account the amount of each
advance made to, and credit to such account the amount of each repayment made by
Xxxxxxxx. From time to time, Bank shall furnish Borrower a statement of
Xxxxxxxx's loan account, which statement shall be deemed to be correct, accepted
by, and binding upon Borrower, unless Bank receives a written statement of
exceptions from Borrower within thirty (30) days after such statement has been
furnished.
Upon the occurrence of any default or Event of Default and the
expiration of any applicable cure period as described in the Credit Agreement,
this Note and all other obligations and Indebtedness of Borrower to Bank
(whether absolute or contingent, direct or indirect, present or future, and
howsoever evidenced) at Bank's option, will immediately become due and payable,
and all without formal demand, presentment or notice of any kind, all of which
are expressly waived.
Borrower shall not be required to pay interest at a rate greater than
the maximum allowed by law and any interest payment received by Bank which
exceeds the maximum legal rate, shall be automatically credited upon the unpaid
principal balance of the Note, or, if there is no principal then outstanding on
this Note, returned to Borrower.
Upon the occurrence of any Event of Default as described in the Credit
Agreement, the unpaid principal balance of this Note shall bear interest at a
rate which is two percent (2%) greater than the Effective Interest Rate
otherwise applicable. If any payment under this Note is not paid within ten (10)
days after the date due, at the option of Bank a late charge of not more than
five cents ($.05) for each dollar of the installment past due may be charged by
Bank.
Acceptance by Bank of any payment in an amount less than the amount
then due shall be deemed an acceptance on account only, and Bank's acceptance of
any such partial payment shall not constitute a waiver of Bank's right to
receive the entire amount due. Borrower does hereby jointly and severally waive
presentment for payment, demand, notice of non-payment, notice of protest or
protest of this Note, and Bank diligence in collection or bringing suit, and do
hereby consent to any and all extensions of time, renewals, waivers or
modifications as may be granted by Bank with respect to payment or any other
provisions of this Note, and to the release of any
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collateral or any part thereof, with or without substitution. The liability of
the Borrower under this Note shall be absolute and unconditional, without regard
to the liability of any other party. This Note shall be deemed to have been
executed in Michigan, and all rights and obligations hereunder shall be governed
by the laws of the State of Michigan.
Reference is hereby made to the Credit Agreement for additional terms
and conditions relating to this Note.
XXXXXXX FINANCIAL SERVICES CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Title: CEO
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Tax ID #
DYNEX FINANCIAL, INC.
By: /s/ X. Xxxxx Xxxxxxx
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Title: President
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Tax ID #
Bank Address:
00000 Xxxxxxx Xxxx (10-02)
Farmington Xxxxx, XX 00000-0000
