EXHIBIT B
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.
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.
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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.
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
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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, 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
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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.
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.
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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 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
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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,
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.
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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.
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,
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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 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
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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 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
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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.
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
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxx X. Xxxxx
By:-------------------- By:-----------------------
Xxxxxxx Xxxxxxxxx Xxxx X. Xxxxx
Title: Vice President Title: Chief Financial Officer
Date: 1/19/96 Date: 1/19/96
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