MODIFICATION NUMBER TWO
TO PROMISSORY NOTE
The Xxxxxxx Co.
0000 Xxxx XxXxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as "Borrower")
Wachovia Bank, National Association
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as "Bank")
THIS AGREEMENT is entered into as of September 26, 2006 by and between
Bank and Borrower.
RECITALS
Bank is the holder of a term Promissory Note executed and delivered by
Borrower, dated August 3, 2001, in the original principal amount of
$8,140,000.00 (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. The total outstanding unpaid principal balance
under the Note as of September 5, 2006 is $2,497,500.00.
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 principal equal to $92,500.00 plus accrued interest, commencing
on October 2, 2006, 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 January 2, 2009.
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.
COLLATERAL. Borrower acknowledges and confirms that there have been no
changes in the ownership of any collateral pledged to secure the Obligations
(the "Collateral") since the Collateral was originally pledged; Borrower
acknowledges and confirms that the Bank has existing, valid first priority
security interests and liens in the Collateral; and that such security
interests and liens shall secure Borrower's Obligations, including any
modification of the Note or Loan Agreement, if any, and all future
modifications, extensions, renewals and/or replacements of the Loan Documents.
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.
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 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.
The Xxxxxxx Co.
/s/ Xxxxx Xxxxxxx
By: ____________________________________(SEAL)
Xxxxx Xxxxxxx, Chief Financial Officer
Wachovia Bank, National Association
/s/ Xxxxx Xxxxxx
By: __________________________________________(SEAL)
Xxxxx Xxxxxx, Senior Vice President
