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EXHIBIT 10.6
[FIRST UNION LOGO]
PROMISSORY NOTE
$2,840,000.00 November 27, 1996
Yager/Kuester Public Fund Limited Partnership
c/o Alison L. Hawk
Internet Services Corporation
12201 Steele Creek Road
Charlotte, North Carolina 28273-3731
(Individually and collectively "Borrower")
First Union National Bank of North Carolina
301 South Tryon Street
Charlotte, North Carolina 28202
(Hereinafter referred to as the "Bank")
Borrower promises to pay to the order of Bank, in lawful money of the United
States of America, at its office indicated above or wherever else Bank may
specify, the sum of Two Million Eight Hundred Forty Thousand and No/100 Dollars
($2,840,000.00) or such sum as may be advanced from time to time with interest
on the unpaid principal balance at the rate and on the terms provided in this
Promissory Note (including all renewals, extensions or modifications hereof,
this "Note").
INTEREST RATE DEFINITIONS.
LIBOR RATE. 3-month LIBOR Rate plus 1.75% (175 basis points) ("LIBOR-Based
Rate"). "LIBOR" is the rate (rounded to the next higher 1/100 of 1%) for U.S.
dollar deposits of that many months maturity as reported on Telerate page 3750
as of 11:00 a.m., London time, on the second London business day before the
relevant Interest Period begins (or if not so reported, then as determined by
Bank from another recognized source of interbank quotation), adjusted for
reserves by dividing that rate by 1.00 minus the LIBOR Reserve. "LIBOR Reserve"
is the maximum percentage reserve requirement (rounded to the next higher 1/100
of 1% and expressed as a decimal) in effect for any day during the Interest
Period under the Federal Reserve Board's Regulation D for Eurocurrency
Liabilities as defined therein.
PRIME RATE. The rate of Bank's Prime Rate as that rate may change from time to
time with changes to occur on the date Bank's Prime Rate changes ("Prime-Based
Rate"). Bank's Prime Rate shall be that rate announced by Bank from time to time
as its prime rate and is one of several interest rate bases used by Bank. Bank
lends at rates both above and below Bank's Prime Rate, and Borrower acknowledges
that Bank's Prime Rte is not represented or intended to be the lowest or most
favorable rate of interest offered by Bank.
INTEREST RATE TO BE APPLIED. INTEREST RATE. Subject to the provisions hereof,
the unpaid principal balance of this Note shall bear interest from the date
hereof at the LIBOR-Based Rate, as determined by Bank prior to the commencement
of each consecutive interest period of 3 months; (each an "Interest Period")
during the term of the Note ("Interest Rate"). Upon determination by Bank of the
Interest Rate for any Interest Period, such Interest Rate shall remain in
effect, subject to the provisions hereof, for the entire Interest Period until
redetermined as provided above for the next successive Interest Period.
DEFAULT RATE. In addition to all other rights contained in this Note, if a
Default (defined herein) occurs and as long as a Default continues, all
outstanding Obligations shall bear interest at the Prime-Based Rate plus 3%
("Default Rate") except if the Note is governed by the laws of the State
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of North Carolina and the original principal amount is less than or equal to
$300,000.00. The Default Rate shall also apply from acceleration until the
Obligations or any judgment thereon is paid in full.
INDEMNIFICATION AND ADDITIONAL COSTS.
INDEMNIFICATION. Borrower indemnifies Bank against Bank's loss or expense in
employing deposits as a consequence (a) of Borrower's failure to make any
payment when due under this Note or (b) any payment, prepayment or conversion of
any loan on a date other than the last day of the Interest Period ("indemnified
Loss or Expense").
ADDITIONAL COSTS. If, at any time, a new, or a revision in any existing law or
interpretation or administration (including reversals) thereof by any government
authority, central bank or comparable agency imposes, increases or modifies any
reserve or similar requirement against assets, deposits or credit extended by
Bank, or subjects Bank to any tax, duty or other charge (except tax on Bank's
net income), and any of the foregoing increase the cost to Bank of maintaining
its commitment or reduce the amount of any sum received or receivables by Bank
under this Note, within 15 days after demand by Bank, Borrower agrees to pay
Bank such additional amounts as will compensate Bank for such increased costs or
reductions ("Additional Costs").
MATCH FUNDING. The amount of such (a) Indemnified Loss or Expense or (b)
Additional Costs outlined above shall be determined, in Bank's sole discretion,
based upon the assumption that Bank funded 100% that portion of the loan to
which the LIBOR-Based Rate or CD-Based Rate applies respectively in the
applicable London interbank or domestic certificate of deposit market.
UNAVAILABILITY OF INTEREST RATE. If, at any time, (a) Bank shall determine that,
by reasons of circumstances affecting foreign exchange and interbank markets
generally, LIBOR or CD deposits in the applicable amounts are not being offered
to Bank; or (b) a new, or a revision in any existing law or interpretation or
administration (including reversals) thereof by any government authority,
central bank or comparable agency shall make it unlawful or impossible for Bank
to honor its obligations under this Note, (i) Bank's obligation to make,
maintain or convert into a LIBOR-Based Rate shall be suspended; and (ii) the
applicable LIBOR-Based Rate shall immediately be converted to the Prime-Based
Rate for the remainder of the Interest Period.
INTEREST COMPUTATION. (ACTUAL/360). Interest shall be computed on the basis of a
360-day year for the actual number of days in the interest period ("Actual/360
Computation"). The Actual/360 Computation determines the annual effective
interest yield by taking the stated (nominal) interest rate for a year's period
and then dividing said rate by 360 to determine the daily periodic rate to be
applied for each day in the interest period. Application of the Actual/360
Computation produces an annualized effective interest rate exceeding that of the
nominal rate.
REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly
payments of accrued interest only commending on January 1, 1997, and 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 December 1, 1997.
APPLICATION OF PAYMENTS. Monies received by Bank from any source for application
toward payment of the Obligations shall be applied to accrued interest and then
to principal. If a Default occurs, monies may be applied to the Obligations in
any manner or order deemed appropriate by Bank.
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If any payment received by Bank under this Note or other Loan Documents is
rescinded, avoided or for any reason returned by Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
LOAN DOCUMENTS AND OBLIGATIONS. The term "Loan Documents" used in this Note and
other Loan Documents refers to all documents executed in connection with the
loan evidenced by this Note and may include, without limitation, a commitment
letter that survives closing, a loan agreement, this Note, guaranty agreements,
security agreements, security instruments, financing statements, mortgage
instruments, letters of credit and any renewals or modifications, but however,
does not include swap agreements as defined in 11 U.S.C. Sec. 101 whenever
executed.
The term "Obligations" used in this Note refers to any and all indebtedness and
other obligations under this Note, all other obligations as defined in the
respective Loan Documents, and all obligations under any swap agreements as
defined in 11 U.S.C. Sec. 101 between Borrower and Bank whenever executed.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
Bank a late charge equal to 4% of each payment past due for 15 or more days.
Acceptance by Bank of any late payment without an accompanying late charge shall
not be deemed a waiver of Bank's right to collect such late charge or to collect
a late charge for any subsequent late payment received.
If this Note is secured by owner-occupied residential real property located
outside the state in which the office of Bank first shown above is located, the
late charge laws of the state where the real property is located shall apply to
this Note, or if permitted under the law of that state, 5% of each payment past
due for 10 or more days.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's
reasonable expenses incurred to enforce or collect any of the Obligations,
including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' fees and expenses, whether incurred without the commencement of a
suit, in any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. Regardless of any other provision of this Note or other Loan Documents,
if for any reason the effective interest should exceed the maximum lawful
interest, the effective interest shall by deemed reduced to, and shall be, such
maximum lawful interest, and (i) the amount which would be excessive interest
shall be deemed applied to the reduction of the principal balance of this Note
and not to the payment of interest, and (ii) if the loan evidenced by this Note
has been or is thereby paid in full, the excess shall be returned to the party
paying same, such application to the principal balance of this Note or the
refunding of excess to be a complete settlement and acquittance thereof.
BORROWER'S ACCOUNTS. Except as prohibited by law, Borrower grants Bank a
security interest in all of Borrower's accounts with Bank and any of its
affiliates.
DEFAULT. If any of the following occurs, a default ("Default") under this Note
shall exist: NONPAYMENT; NONPERFORMANCE. The failure of timely payment or
performance of the Obligations under this Note or any other Loan Documents.
FALSE WARRANTY. A warranty or representation made in the Loan Documents or
furnished Bank in connection with the loan evidenced by this Note proves
materially false, or if of a continuing nature, becomes materially false. CROSS
DEFAULT. At Bank's option, any default in payment or performance of any
obligation under any other loans,
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contracts or agreements of Borrower, any Subsidiary of Affiliate of Borrower,
any general partner of or the holder(s) of the majority ownership interests of
Borrower with Bank or its affiliates ("Affiliate" shall have the meaning as
defined in 11 U.S.C. Sec.101, except that the term "debtor" therein shall be
substituted by the term "Borrower" herein; "Subsidiary" shall mean any
corporation of which more than 50% of the issued and outstanding voting stock is
owned directly or indirectly by Borrower). CESSATION; BANKRUPTCY. The death of,
appointment of guardian for, dissolution of, termination of existence of, loss
of good standing status by, appointment of a receiver for, assignment for the
benefit of creditors of, or commencement of any bankruptcy or insolvency
proceeding by or against the Borrower, its Subsidiaries or Affiliates, if any,
or any general partner of or the holder(s) of the majority ownership interests
of Borrower, or any party to the Loan Documents. MATERIAL CAPITAL STRUCTURE OR
BUSINESS ALTERATION. Without prior written consent of Bank, (i) a material
alteration in the kind or type of Borrower's business or that of its
Subsidiaries or Affiliates, if any; (ii) the acquisition of substantially all of
Borrower's, any Subsidiary's, any Affiliate's, or guarantor's business or
assets, or a material portion (10% or more) of such business or assets if such a
sale is outside Borrower's, any Subsidiary's, any Affiliate's or any
guarantor's, ordinary course of business, or more than 50% of its outstanding
stock or voting power in a single transaction or a series of transactions; (iii)
the acquisition of substantially all of the business or assets or more than 50%
of the outstanding stock or voting power of any other entity; or (iv) should any
Borrower, Subsidiary, Affiliate, or guarantor enter into any merger or
consolidation.
REMEDIES UPON DEFAULT. If a Default occurs under this Note or any Loan
Documents, Bank may at any time thereafter, take the following actions: BANK
LIEN AND SET-OFF. Exercise its right of set-off or to foreclose its security
interest or lien against any account of any nature or maturity of Borrower with
Bank without notice. ACCELERATION UPON DEFAULT. Accelerate the maturity of this
Note and all other Obligations, and all of the Obligations shall be immediately
due and payable. CUMULATIVE. Exercise any rights and remedies as provided under
the Note and other Loan Documents, or as provided by law or equity.
ANNUAL FINANCIAL STATEMENTS. Borrower shall deliver to Bank, within 90 days
after the close of each fiscal year, audited financial statements reflecting its
operations during such fiscal year, including, without limitation, a balance
sheet, income statement, cash flow analysis, profit and loss statement and
statement of cash flows, with supporting schedules; all on a consolidated and
consolidating basis and in reasonable detail, prepared in conformity with
generally accepted accounting principles, applied on a basis consistent with
that of the preceding year. All such statements shall be examined by an
independent certified public accountant acceptable to Bank. The opinion of such
independent certified public accountant shall not be acceptable to Bank if
qualified due to any limitations in scope imposed by Borrower or its
Subsidiaries, if any. Any other qualification of the opinion by the accountant
shall render the acceptability of the financial statements subject to Bank's
approval.
ANNUAL FINANCIAL STATEMENTS. Internet Services Corporation, Yager Enterprises,
Inc. and Yager Personal Development, Inc. shall deliver to Bank, within 90 days
after the close of each fiscal year, unaudited management-prepared financial
statements reflecting its operations during such fiscal year, including, without
limitation, a balance sheet, profit and loss statement and statement of cash
flows, with supporting schedules; all on a consolidated and consolidating basis
and in reasonable detail, prepared in conformity with generally accepted
accounting principles, applied on a basis consistent with that of the preceding
year. If unaudited statements are required, such statements shall be certified
as to their correctness by a principal financial officer of Internet Services
Corporation, Yager Enterprises, Inc. and Yager Personal Development, Inc.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and
other Loan Documents shall be valid unless in writing and signed by an officer
of Bank. No waiver by Bank of any Default shall operate as a waiver of any other
Default or the same Default on a future
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occasion. Neither the failure not any delay on the part of Bank in exercising
any right, power, or remedy under this Note and other Loan Documents shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
Each Borrower or any person liable under this Note waives presentment, protest,
notice of dishonor, demand for payment, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of sale and all other
notices of any kind. Further, each agrees that Bank may extend, modify or renew
this Note or make a novation of the loan evidenced by this Note for any period
and grant any releases, compromises or indulgences with respect to any
collateral securing this Note, or with respect to any Borrower or any person
liable under this Note or other Loan Documents, all without notice to or consent
of any Borrower or any person who may be liable under this Note or other Loan
Documents and without affecting the liability of Borrower or any person who may
be liable under this Note or other Loan Documents.
MISCELLANEOUS PROVISIONS. ASSIGNMENT. This Note and other Loan Documents shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. Bank's interests in and
rights under this Note and other Loan Documents are freely assignable, in whole
or in part, by Bank. Borrower shall not assign its rights and interest hereunder
without the prior written consent of Bank, and any attempt by Borrower to assign
without Bank's prior written consent is null and void. Any assignment shall not
release Borrower from the Obligations. APPLICABLE LAW; CONFLICT BETWEEN
DOCUMENTS. This Note and other Loan Documents shall be governed by and construed
under the laws of the state where Bank first shown above is located without
regard to that state's conflict of laws principles. If the terms of this Note
should conflict with the terms of the loan agreement or any commitment letter
that survives closing, the terms of this Note shall control. JURISDICTION.
Borrower irrevocably agrees to non-exclusive personal jurisdiction in the state
in which the office Bank first shown above is located. SEVERABILITY. If any
provision of this Note or of the other Loan Documents shall be prohibited or
invalid under applicable law, such provision shall be ineffective but only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Note or other such
document. NOTICES. Any notices to Borrower shall be sufficiently given, if in
writing and mailed or delivered to the Borrower's address shown above or such
other address as provided hereunder, and to Bank, if in writing and mailed or
delivered to Bank's office address shown above or such other address as Bank may
specify in writing from time to time. In the event that Borrower changes
Borrower's address at any time prior to the date the Obligations are paid in
full, Borrower agrees to promptly give written notice of said change of address
by registered or certified mail, return receipt requested, all charges prepaid.
PLURAL; CAPTIONS. All references in the Loan Documents to Borrower, guarantor,
person, document or other nouns of reference mean both the singular and plural
form, as the case may be, and the term "person" shall mean any individual,
person or entity. The captions contained in the Loan Documents are inserted for
convenience only and shall not affect the meaning or interpretation of the Loan
Documents. BINDING CONTRACT. Borrower by execution of and Bank by acceptance of
this Note agree that each party is bound to all terms and provisions of this
Note. ADVANCES. Bank in its sole discretion may make other advances and
readvances under this Note pursuant hereto. POSTING OF PAYMENTS. All payments
received during normal banking hours after 2:00 p.m. local time at the office of
Bank first shown above shall be deemed received at the opening of the next
banking day. JOINT AND SEVERAL OBLIGATIONS. Each Borrower is jointly and
severally obligated under this Note. FEES AND TAXES. Borrower shall promptly pay
all documentary, intangible recordation and/or similar taxes on this transaction
whether assessed at closing or arising from time to time.
ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Note and other Loan Documents
("Disputes") between or among parties to this Note shall be
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resolved by binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, disputes as to whether a matter is subject to arbitration, claims
brought as class actions, claims arising from Loan Documents executed in the
future, or claims arising out of or connected with the transaction reflected by
this Note.
Arbitration shall be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA") and Title 9 of the U.S. Code. All arbitration hearings
shall be conducted in the city in which the office of Bank first stated above is
located. The expedited procedures set forth in Rule 51 et seq. of the
Arbitration Rules shall be applicable to claims of less than $1,000,000.00. All
applicable statutes of limitation shall apply to any Dispute. A judgment upon
the award may be entered in any court having jurisdiction. The panel from which
all arbitrators are selected shall be comprised of licensed attorneys. The
single arbitrator selected for expedited procedure shall be a retired judge from
the highest court of general jurisdiction, state or federal, of the state where
the hearing will be conducted or if such person is not available to serve, the
single arbitrator may be a licensed attorney. Notwithstanding the foregoing,
this arbitration provision does not apply to disputes under or related to swap
agreements.
PRESERVATION AND LIMITATION OF REMEDIES. Notwithstanding the preceding binding
arbitration provisions, Bank and Borrower agree to preserve, without diminution,
certain remedies that any party hereto may employ or exercise freely,
independently or in connection with an arbitration proceeding or after an
arbitration action is brought. Bank and Borrower shall have the right to proceed
in any court of proper jurisdiction or by self-help to exercise or prosecute the
following remedies, as applicable: (i) all rights to foreclose against any real
or personal property or other security be exercising a power of sale granted
under Loan Documents or under applicable law or by judicial foreclosure and
sale, including a proceeding to confirm the sale; (ii) all rights of self-help
including peaceful occupation of real property and collection of rents, set-off,
and peaceful possession of personal property; (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and filing an involuntary bankruptcy
proceeding; and (iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a party in a Dispute.
Borrower and Bank agree that they shall not have a remedy of punitive or
exemplary damages against the other in any Dispute and hereby waive any right or
claim to punitive or exemplary damages they have now or which may arise in the
future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
IN WITNESS WHEREOF, Borrower, on the day and year first written above, has
caused this Note to be executed under seal.
Yager/Kuester Public Fund Limited Partnership
Taxpayer Identification Number: 56-1560476
DRY Limited Partnership, General Partner
By: /S/ Dexter R. Yager, Sr. (SEAL)
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Dexter R. Yager, Sr., General Partner
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