Exhibit 10.1
MODIFICATION NUMBER TWO
TO PROMISSORY NOTE
RGC Resources, Inc.
000 Xxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxxx 00000
(Individually and collectively, "Borrower")
Wachovia Bank, National Association
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
(Hereinafter referred to as "Bank")
IMPORTANT NOTICE
THIS AGREEMENT CONTAINS A CONFESSION OF JUDGMENT PROVISION WHICH
CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE AS A BORROWER AND
ALLOWS BANK TO OBTAIN A JUDGMENT AGAINST YOU WITHOUT FURTHER NOTICE.
THIS AGREEMENT is entered into as of March 29, 2005 by and between Bank and
Borrower.
RECITALS
Bank is the holder of a Promissory Note executed and delivered by Borrower,
dated April 21, 2003, in the original principal amount of $1,000,000.00 (the
"Note"); Borrower and Bank have agreed to modify the terms of the Note. In
consideration of Bank's continued extension of credit and the agreements
contained herein, the parties agree as follows:
AGREEMENT
ACKNOWLEDGMENT OF BALANCE. Borrower acknowledges that the most recent Commercial
Loan Invoice sent to Borrower with respect to the Obligations under the Note is
correct.
MODIFICATIONS.
The Note is hereby modified by deleting the provisions in the Note establishing
the repayment terms and substituting the following in their place and stead:
REPAYMENT TERMS. The Note shall be due and payable in consecutive monthly
payments of accrued interest only, commencing on April 1, 2005, and continuing
on the same day of each month thereafter until fully paid. In any event, all
principal and accrued interest shall be due and payable on March 31, 2006.
ACKNOWLEDGMENTS AND REPRESENTATIONS. Borrower acknowledges and represents that
the Note and other Loan Documents, as amended hereby, are in full force and
effect without any defense, counterclaim, right or claim of set-off; that, after
giving effect to this Agreement, no default or event that with the passage of
time or giving of notice would constitute a default under the Loan Documents has
occurred, all representations and warranties contained in the Loan Documents are
true and correct as of this date, all necessary action to authorize the
execution and delivery of this Agreement has been taken; and this Agreement is a
modification of an existing obligation and is not a novation.
MISCELLANEOUS. This Agreement shall be construed in accordance with and governed
by the laws of the applicable state as originally provided in the Loan
Documents, without reference to that state's conflicts of law principles. This
Agreement and the other Loan Documents constitute the sole agreement of the
parties with respect to the subject matter thereof and supersede all oral
negotiations and prior writings with respect to the subject matter thereof. No
amendment of this Agreement, and no waiver of any one or more of the provisions
hereof shall be effective unless set forth in writing and signed by the parties
hereto. The illegality, unenforceability or inconsistency of any provision of
this Agreement shall not in any way affect or impair the legality,
enforceability or consistency of the remaining provisions of this Agreement or
the other Loan Documents. This Agreement and the other Loan Documents are
intended to be consistent. However, in the event of any inconsistencies among
this Agreement and any of the Loan Documents, the terms of this Agreement, and
then the Note, shall control. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts. Each such
counterpart shall be deemed an original, but all such counterparts shall
together constitute one and the same agreement. Terms used in this Agreement
which are capitalized and not otherwise defined herein shall have the meanings
ascribed to such terms in the Note. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE
DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES
THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR
CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY
CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR
DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED
HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER
FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY
DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO
PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN
CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS
RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. FINAL AGREEMENT.
This Agreement and the other Loan Documents represent the final agreement
between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties.
Borrower reaffirms and restates the following with respect to the Note as
modified herein:
CONFESSION OF JUDGMENT. Each Borrower hereby constitutes and appoints Xxxx X.
Xxx, Xxxxxxx X. Xxxxxx (each of whom is an officer of Bank), and Bank through an
officer duly authorized by Bank (any of the foregoing may act), as the true and
lawful attorneys-in-fact for them, in any or all of their names, place and
stead, and upon the occurrence of a Default in the payment of the Obligations
due under this Agreement, at maturity, or upon acceleration, to confess judgment
against them or any of them, in favor of Bank, before the Clerk of the Circuit
Court for City of Richmond, Virginia, in accordance with 1950 Code of Virginia,
Section 8.01-431 et seq., and any successor statute, for all amounts owed with
respect to the Obligations under and pursuant to this Agreement including,
without limitation, all costs of collection and attorneys' fees in an amount
equal to 15% of the Obligations then outstanding (which shall be deemed
reasonable attorneys' fees for the purposes of this paragraph), and court costs,
hereby ratifying and confirming the acts of said attorney-in-fact as if done by
themselves. Upon request of Bank, each Borrower will execute an amendment or
other agreement substituting attorneys-in-fact appointed to act for each
Borrower hereunder.
WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO
BE EXECUTED IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY
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WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ACCEPT
THIS AGREEMENT. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL SUPERSEDE
AND REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES BETWEEN THE
PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT
HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO OR BEING REPLACED,
SUPPLEMENTED, EXTENDED OR MODIFIED BY, THIS AGREEMENT.
IN WITNESS WHEREOF, the undersigned have signed and sealed this Agreement the
day and year first above written.
RGC Resources, Inc.
By: s/Xxxx X. Xxxxxxxxxx, III (SEAL)
Xxxx X. Xxxxxxxxxx, III, President/Chairman/CEO
By: s/Xxxxxx X. Xxxx (SEAL)
Xxxxxx X. Xxxx, Controller/Treasurer
Wachovia Bank, National Association
By: s/Xxxxxx Xxxx (SEAL)
Xxxxxx Xxxx, Vice President
Tracking #: 100053rke
CAT - Deal # 493483 Facility ID 336059
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