Exhibit 10.14
CB Loan No.
NOTE
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$5,000,000.00
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Manassas, Virginia
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September 28,
2006
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FOR VALUE RECEIVED,
the undersigned, HERITAGE
BANKSHARES, INC. , a Virginia corporation (the “
Borrower ”), promises to pay to the order of
CARDINAL BANK , a Virginia banking corporation, its
successors and assigns (the “ Lender ”)
with offices at 8270 Greensboro Drive, Suite 500, McLean, Virginia
22102, or at such other address as the Lender shall specify in
writing, in lawful money of the United States of America, the
principal sum of FIVE MILLION AND 00/100 DOLLARS
($5,000,000.00) , together with interest on the unpaid
principal balance advanced at the rate and on the terms hereinafter
provided, all without offset or deduction (including all
modifications, amendments, substitutions, renewals or extensions
hereof and allonges hereto, this “ Note
”). This is a single draw term credit facility.
1. Definitions
. The specified terms, as
they may be used in this Note, shall have the following
meanings:
“ Control
” of a Person means (i) ownership, control, or power to
vote 51% or more of any class of voting securities of such Person,
directly or indirectly or acting through one or more other Persons;
(ii) control in any manner over the election or appointment of
a majority of the directors, trustees, managers or general partners
(or individuals exercising similar functions) of such Person;
(iii) the direct or indirect power to exercise a controlling
influence over the management or policies of such Person, whether
through the ownership of voting securities, by contract, or
otherwise; or (iv) conditioning in any manner the transfer of
51% or more of any class of voting securities of such Person upon
the transfer of 51% or more of any class of voting securities of
another Person.
“ LIBOR ”
means the rate per annum (rounded upward, if necessary, to the
nearest 1/16 th of 1%) obtained by determining the
one-day (or multiple day, as applicable, in contemplation of
succeeding non-Business Days) interest period London Interbank
Offered Rate, as fixed by the British Bankers Association for
United States dollar deposits in the London Interbank Eurodollar
Market at approximately 11:00 a.m. London, England time (or as soon
thereafter as practicable) each day (or, if such day is a
non-Business Day, as fixed in the same manner on the immediately
preceding Business Day, which day’s rate shall apply to the
immediately succeeding non-Business Days), as determined by the
Lender from any broker,
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Heritage Bankshares, Inc.
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quoting service or other commonly available
source utilized by the Lender. Notwithstanding any provision above,
the practice of rounding to determine LIBOR may be discontinued at
any time in the Lender’s sole discretion. As used in this
definition, “Business Day” means any day of the year on
which dealings are carried on in the London Interbank Eurodollar
Market.
“ Loan ”
means the commercial loan made by the Lender to the Borrower in the
principal amount of, and evidenced by, this Note.
“ Loan Agreement
” means that certain Loan Agreement dated as of the date
hereof by and between the Borrower and the Lender, as amended,
modified or supplemented from time to time.
“ Loan Documents
” means this Note, the Loan Agreement and all other related
documents, whether now or hereafter executed, evidencing,
guarantying or securing the Loan or given by the Borrower in
connection therewith, all as the same may be amended, modified or
supplemented from time to time,
“ Party ”
means the Borrower, any indorser or guarantor of this Note, any
grantor or debtor giving security for this Note, and any other
obligor on any of the Loan Documents.
“ Person ”
means an individual, a corporation, a partnership, an association,
a limited liability company, a trust or any other entity or
organization.
All other capitalized terms, unless
otherwise defined, shall have the same definition as set forth in
the Loan Agreement.
2. Interest Rate
. This Note shall bear
interest on the principal balance outstanding from time to time, at
a variable rate per annum equal to the 30-day LIBOR rate, as such
rate may change from time to time, plus two and forty
one-hundredths percent (2.40%). Adjustments to the interest rate
applicable on this Note, in accordance with changes in the 30-day
LIBOR rate, shall be made by the Lender on a weekly
basis.
3. Payment and Maturity
.
(a) Commencing on November 1,
2006 and continuing on the first (1 st ) day of each and every
calendar month thereafter until the Maturity Date, the Borrower
shall pay to the Lender, in accordance with the monthly invoices
calculated and rendered by the Lender, the interest accrued on this
Note; then,
(b) If not sooner paid, on
September 30, 2011 (the “ Maturity Date
”), the Borrower shall pay to the Lender in full the entire
balance of principal remaining unpaid, plus accrued interest
thereon at the aforesaid rate not previously paid, and fees and
costs, if any.
(c) All payments due under this Note
shall be payable in immediately available funds in lawful money of
the United States which shall be legal tender for public and
private debts at the time of payment. The making of any payment in
other than immediately
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available funds, which the Lender, at its option
elects to accept, shall be subject to collection, and interest
shall continue to accrue until the funds by which payment is made
are available to the Lender for its use.
4. Prepayment .
The Borrower may prepay the whole or
any part of the outstanding indebtedness evidenced by this Note at
any time prior to the Maturity Date, without penalty. Any
prepayment shall include interest accrued to the date of such
prepayment and all other sums then due under any of the Loan
Documents. Any partial prepayment shall be applied against the
interest on this Note and then to the principal sum then
outstanding and shall not postpone the due date of any subsequent
installment or change the amount of any installment, unless agreed
to by the Lender in writing.
5. Application of Payments
. For the purposes of
computing interest on the debt evidenced hereby, interest on the
Loan amount advanced and outstanding shall be calculated on the
basis of a three hundred sixty (360) day calendar year based
on the actual number of days elapsed. Payments or prepayments on
this Note shall be applied first to late charges, reasonable costs
of collection and enforcement, then to pay or to reimburse the
Lender for any costs incurred or advances made by the Lender under
the Loan Agreement, then to pay accrued and unpaid interest, and
the remainder to pay principal then due and payable hereunder. The
Lender’s books and records shall be presumed correct as to
the sums outstanding under this Note, except in the case of
manifest error.
6. Late Charge
. In the event any
installment due under this Note is paid more than ten
(10) days after the date when the same is due, then the Lender
shall be entitled to collect a “late charge” in an
amount equal to five percent (5%) of such installment.
Acceptance by the Lender of any late payment without an
accompanying late charge shall not be deemed a waiver of the
Lender’s right to receive such late charge or to receive a
late charge for any subsequent payment received more than ten
(10) days after its due date.
7. Default
.
(a) Default . Each of the
following events or conditions shall constitute an event of default
under this Note (hereinafter “ Default
”):
(i) the failure to make any payment
of principal, interest or any other amount due under this Note when
such payment is due;
(ii) any default under the terms of
any of the Loan Documents (the terms and provisions of which are
incorporated herein by this reference as if set forth in full), or
the failure to perform or observe any warranty, covenant, or other
condition of any of the Loan Documents which remains uncured after
the provided grace period, if any;
(iii) any default by the Borrower or
any indorser or guarantor of the payment of this Note with respect
to any indebtedness to the Lender (other than this Note) or to any
other creditor or obligee;
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(iv) the merger, consolidation,
reorganization, dissolution, or termination of existence of any
Party;
(v) the pledge, lease or other
disposition of all or substantially all of the assets of any
Party;
(vi) any change, or any transaction
which results or could result in a change, in the Control of any
Party (including, without limitation, the sale of all or a
controlling interest in the Borrower);
(vii) the determination by the
Lender that any warranty, representation, certificate, statement or
information provided by any Party or any Person on behalf of a
Party to the Lender in connection with any of the Loan Documents,
or to induce the Lender to make or extend or modify the terms of
the loan evidenced by this Note, was false or misleading, or that
any Party or any Person on behalf of a Party failed to provide or
disclose any facts or information, which failure rendered such
warranty, representation, certificate, statement or information
misleading;
(viii) the inability of any Party to
pay its debts as they mature, the insolvency of any Party, the
filing of a petition by or against any Party under the provisions
of any bankruptcy, reorganization, arrangement, insolvency,
liquidation or similar law for relief of debtors, the appointment
or application for appointment of any receiver for any Party or the
property of any Party, the issuance or service of any attachment,
levy, garnishment, tax lien or similar process against any Party or
the property of any Party, the entry of a judgment against any
Party, or an assignment for the benefit of creditors by any
Party;
(ix) any indorsement or guaranty of
the payment of this Note shall cease for any reason to be in full
force and effect (excepting the death of such guarantor), or any
indorser or guarantor shall contest the validity or enforceability
of the indorsement or guaranty or deny that it has any further
liability or obligation under the indorsement or
guaranty;
(xi) the determination by the Lender
that (i) there has occurred an adverse change in the financial
condition of any Party, or (ii) there has occurred or
developed an event or condition which materially impairs the
prospect of payment or performance of any of the obligations of any
Party under the Loan Documents; or
(xii) the failure of the Borrower to
comply with any other non-monetary obligation, covenant or warranty
pursuant to this Note or any Loan Document, which default remains
uncured thirty (30) days after written notice to the
Borrower.
(b) Acceleration Upon Default
.
(i) If Default be made under this
Note, at the option of the Lender, the full amount remaining unpaid
on this Note shall become immediately due and payable without
presentment, demand or notice of any kind, and the Lender may
exercise any or all remedies
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available to it under applicable law and the
Loan Documents. If default be made in the performance of any
covenant of the Loan Agreement given to secure this Note (the terms
and provisions of which are incorporated herein by this reference
as if set forth in full), and if such default shall continue for
the duration of any applicable grace period therein contained, if
any, the entire principal sum outstanding, together with accrued
interest thereon, shall at once become due and payable at the
option of the Lender without fu