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EXHIBIT
10.1
Customer No.
Loan No.
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| RBC
Centura Bank |
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Commercial Promissory
Note
(UNSD –
F&V)
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| $15,000,000.00 |
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Raleigh, North Carolina |
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December 19, 2007 |
| Original
Loan |
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FOR VALUE RECEIVED, the undersigned
(whether one or more, “Borrower”) promises to pay to
RBC CENTURA BANK (“Bank”), or order, the sum of Fifteen
Million Dollars ($15,000,000.00), or so much thereof as shall
have been disbursed from time to time and remains unpaid, together
with interest at the rate and payable in the manner hereinafter
stated. Principal and interest shall be payable at any banking
office of Bank in the city or town indicated above, or such other
place as the holder of this Note may designate.
Article I. Interest
Rate.
Section 1.1. Rate of Accrual
. Interest will accrue on the unpaid principal balance at the rate
set forth in Section 1.2.1. until demand by Bank for
payment of this Note. Interest will accrue on any unpaid balance
owing under this Note, whether principal, interest, fees, premiums,
charges or costs and expenses, after demand at the rate set forth
in Section 1.2.2. All accrual rates of interest under
this Note will be contract rates of interest, whether a pre-default
rate or a default rate, and references to contract rates in any
loan documents executed and delivered by Borrower or others to Bank
in connection with this Note shall be to such contract
rates.
Section 1.2. Interest
Rates.
1.2.1. Pre-Default
Rate . Subject to the provisions of Section 1.2.2.
below, interest payable on this Note per annum will accrue at 81
basis points over the LIBOR Base Rate. The “LIBOR Base
Rate” is the London Interbank Offer Rate for United States
Dollars for a term of one month which appears on Telerate Page
3750, Bloomberg Professional Screen BBAM (or any generally
recognized successor method or means of publication) as of 11:00
a.m., London time, two (2) London business days prior to the
day on which the rate will become effective. The rate for the first
month or part thereof will initially become effective on the date
of the Note as shown on the face hereof. Thereafter, the rate will
change and a new rate will become effective on the first calendar
day of each succeeding month. If for any reason the London
Interbank Offer Rate is not available, then the “LIBOR Base
Rate” shall mean the rate per annum which banks charge each
other in a market comparable to England’s Eurodollar market
on short-term money in U.S. Dollars for an amount substantially
equivalent to the principal amount due under this Note as
determined at 11:00 A.M., London time, two (2) London business
days prior to the day on which the rate will become effective, as
determined in the Bank’s sole discretion. Bank’s
determination of such interest rate shall be conclusive, absent
manifest error.
1.2.2. Default Rate .
Upon the nonpayment of any payment of interest described herein,
Bank, at its option and without demanding payment of this Note, may
accrue interest on such unpaid interest at a rate per annum
(“Default Rate”) equal to the lesser of the maximum
contract rate of interest that may be charged to and collected from
Borrower on the loan evidenced by this Note under applicable law or
five percent (5.0%) plus the pre-default interest rate
otherwise applicable hereunder, as set forth in
ASection 1.2.1. After demand for payment, interest will
accrue on the unpaid principal of this Note, any accrued but unpaid
interest and all fees, premiums, charges and costs and expenses
owing hereunder at the Default Rate until this Note is paid in
full, whether this Note is paid in full pre-judgement or
post-judgement.
1.2.3. Variable Rate;
Calculation of Interest .
1.2.3.1. Variable Rate
. This is a variable rate note. Any change in the rate of interest
payable under this Note will equal the change in the variable rate
index to which such rate is tied, but the rate at which
1
interest accrues under this Note shall
never exceed the maximum contract rate which may be charged to and
collected from Borrower on the loan evidenced by this Note under
applicable law. Bank shall have no obligation to notify Borrower of
adjustments in the rate of interest payable under this Note.
Adjustments to the rate of interest will be effective on the date
of change in the variable rate index.
1.2.3.2. Calculation of
Interest . All interest payable under this Note shall be
calculated on the basis of the actual number of days elapsed and a
year of three hundred sixty (360) days. In computing the
number of days during which interest accrues, the day on which
funds are initially advanced shall be included regardless of the
time of day such advance is made, and the day on which funds are
repaid shall be included unless repayment is credited prior to
close of business. Payments in federal funds, immediately available
in the place designated for payment, received by Bank prior to 2:00
p.m. local time at said place of payment, shall be credited as if
received prior to close of business on the day the funds are
immediately available; while other payments, at the option of Bank,
may not be credited until such payments are immediately available
to Bank, in federal funds, in the place designated for payment,
prior to 2:00 p.m. local time at said place of payment on a day on
which Bank is open for business.
Article II. Payment
Terms.
Section 2.1. Interest Payment
Terms . Interest shall be payable with principal and the
payment set forth in Section 2.2 below includes both
principal and interest.
Section 2.2. Principal Payment
Terms . Principal and interest shall be payable on the earlier
of DEMAND or December 20, 2009.
Section 2.3. Prepayment .
This Note may be prepaid in whole, or in part in multiples of
$1,000,000.00, at any time without any prepayment
premium.
Section 2.4. Application of
Payments . All payments made on this Note shall be applied
first to payment of all late fees, charges, premiums and costs and
expenses due but unpaid under this Note, then to accrued but unpaid
interest and finally to principal, in the inverse order of the
payment dates therefor, unless Bank determines in its sole
discretion to apply payments in a different order or applicable law
requires a different application of payments. The partial
prepayment of this Note, if permitted, shall not result in a
payment holiday or any other deferral of any regularly scheduled
payments under this Note, all of which shall be made as and when
the same are scheduled to be paid.
Article III.
Security.
This Note is unsecured except for
(1) any security documents and other supporting obligations
which reference that they secure this Note, (2) any security
documents and other supporting obligations which reference that
they secure all indebtedness or other obligations owing from time
to time by Borrower to Bank, and (3) any security documents
and other supporting obligations which reference that they secure
all indebtedness from time to time owing by Borrower to Bank other
than consumer credit as defined under the Federal Reserve
Board’s Regulation Z (Truth-in-Lending)(12 CFR 226 et. Seq.)
(“security documents”).
Article IV.
Default.
Section 4.1. Late Charges and
Expenses . Borrower agrees to pay, upon demand by Bank, for
each payment past due for fifteen (15) or more calendar days,
a late charge in an amount equal to the lesser of (1) four
percent (4%) of t
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