Change in Terms Agreement



 EXHIBIT 10.1 

 
 



 
 CHANGE IN TERMS AGREEMENT 

 

															
	Principal	 	Loan Date	 	Maturity	 	Loan No	 	Call / Coll	 	Account	 	Officer	 	Initials
	
$1,533,346.00
	 	12-20-2012	 	12-30-2017	 	1532003757	 	FJ-1	 	***	 	SJM	 	 
	  

References in the boxes above are for Lender’s use only and do not limit the applicability of this document to any particular loan or
item.
 Any item above containing “***” has been omitted due to text length limitations.


  

							
	 Borrower:
	    	 Lynnhaven Parkway Associates LLC
 (TIN: 26-1598472)
 2529 Virginia Beach Blvd Ste 200

Virginia Beach, VA 23452
	    	 Lender:
	    	 TowneBank

Virginia Beach Business Lending Center

2101 Parks Avenue, Suite 200
 Virginia
Beach, VA 23451


  
  

 

			
	Principal Amount:    $1,533,346.00	 	Date of Agreement:    December 20, 2012

 DESCRIPTION OF EXISTING INDEBTEDNESS. Promissory Note dated December 28, 2007 in the original principal amount of
$2,044,462.00. 
 DESCRIPTION OF COLLATERAL. 
 (A) a Credit Line Deed of Trust dated December 28, 2007 on real property commonly known as 100 Lynnhaven Parkway, Virginia Beach, VA 23452. 
 (B) An Assignment of All Rents to Lender on real property commonly known as 100 Lynnhaven Parkway, Virginia Beach, VA 23452. 
 DESCRIPTION OF CHANGE IN TERMS. (1) Term out existing principal balance, amortized over 240 months, at a fixed interest rate of 4.15% with a five (5) year term and rate call. 

(2) Release the Unlimited Guarantee of Jon S. Wheeler. 
 PROMISE TO PAY. Lynnhaven Parkway Associates LLC (“Borrower”) promises to pay to TowneBank (“Lender”), or order, in lawful money of the United States of America, the principal
amount of One Million Five Hundred Thirty-three Thousand Three Hundred Forty-six & 00/100 Dollars ($1,533,346.00), together with interest on the unpaid principal balance from December 20, 2012, calculated as described in the “INTEREST
CALCULATION METHOD” paragraph using an interest rate of 4.150%, until paid in full. The interest rate may change under the terms and conditions of the “INTEREST AFTER DEFAULT” action. 

PAYMENT. Borrower will pay this loan in 59 regular payments of $9,472.90 each and one irregular last payment estimated at $1,272,112.97.
Borrower’s first payment is due January 30, 2013, and all subsequent payments are due on the same day of each month after that. Borrower’s final payment will be due on December 30, 2017, and will be for all principal, accrued
Interest, and all other applicable fees, costs and charges. If any, not yet paid. Payments include principal and interest . Unless otherwise agreed or required by applicable law, payments will be applied first to any late charges; then to any
accrued unpaid interest; and then to principal. Borrower will pay Lender at Lender’s address shown above or at such other place as Lender may designate in writing. 
 INTEREST CALCULATION METHOD. Interest on this loan is computed on a 365/360 basis; that is, by applying the ratio of the 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. All interest payable under this loan is computed using this method. This calculation method results in a higher effective interest rate than the numeric interest
rate stated in the loan documents. 
 PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges are earned
fully as of the date of the loan and will not be subject to refund upon early payment (whether voluntary or as a result of default), except as otherwise required by law. Except for the foregoing, Borrower may pay without penalty 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 under the payment schedule. Rather, early payments will reduce the
principal balance due and may result in Borrower’s making fewer payments. Borrower agrees not to send Lender payments marked “paid in full”, “without recourse”, or similar language. If Borrower sends such a payment, Lender
may accept it without losing any of Lender’s rights under this Agreement, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment
instrument that indicates that the payment constitutes “payment in full” of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: TowneBank,
P.O. Box 2818 Norfolk, VA 23510-2818. 
 LATE CHARGE. If a payment is 7 days or more late, Borrower will be charged 5.000% of the
regularly scheduled payment. 
 INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on
this loan shall be increased by 3.000 percentage points. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. 
 DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: 
 Payment Default. Borrower fails to make any payment when due under the Indebtedness. 
 Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement or in any of the Related Documents or to comply with or to
perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. 
 Default
in Favor of Third Parties. Borrower defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower’s
property or ability to perform Borrower’s obligations under this Agreement or any of the Related Documents. 
 False
Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower’s behalf under this Agreement or the Related Documents is false or misleading in any material respect, either now or at the time
made or furnished or becomes false or misleading at any time thereafter. 
 Death or Insolvency. The dissolution or
termination of Borrower’s existence as a going business or the death of any member, or a trustee or receiver is appointed for Borrower or for all or a substantial portion of the assets of Borrower, or Borrower makes a general assignment for the
benefit of Borrower’s creditors, or Borrower files for bankruptcy, or an involuntary bankruptcy petition is filed against Borrower and such involuntary petition remains undismissed for sixty (60) days. 

Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding,
self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the indebtedness. This includes a garnishment of any of Borrower’s accounts, including deposit accounts, with
Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written
notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the
dispute. 
 Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser,
surety, or accommodation party of any of the Indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness evidenced
by this Note. 
 Adverse Change. A material adverse change occurs in Borrower’s financial condition, or Lender
believes the prospect of payment or performance of the Indebtedness is impaired. 
 Insecurity. Lender in good faith
believes itself insecure. 
 Cure Provisions. If any default, other that a default in payment is curable and if Borrower
has not been given a notice of a breach of the same provision of this Agreement within the preceding twelve (12) months, it may be cured if Borrower, after Lender sends written notice to Borrower demanding cure of such default: (1) cures
the default within fifteen (15) days; or (2) if the cure requires more than fifteen (15) days, immediately initiates steps which Lender deems in Lender’s sole discretion to be sufficient to cure the default and thereafter
continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. 
 LENDER’S
RIGHTS. Upon default, Lender may declare the entire unpaid principal balance under this Agreement and all accrued unpaid interest, together with all other applicable fees, costs and charges, if any, immediately due and payable, and then Borrower
will pay that amount. 
 ATTORNEYS’ FEES; EXPENSES. Subject to any limits under applicable law, upon default, Borrower agrees to pay
Lender’s attorneys’ fees and all of Lender’s other collection expenses, whether or not there is a lawsuit, including without limitation legal expenses for bankruptcy proceedings. 








					
		 	CHANGE IN TERMS AGREEMENT	 	
	Loan No: 1532003757	 	(Continued)	 	Page 2

  
 JURY 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. 
 GOVERNING LAW. This Agreement will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Virginia without regard to its
conflicts of law provisions. This Agreement has been accepted by Lender in the Commonwealth of Virginia. 
 DISHONORED ITEM FEE.
Borrower will pay a fee to Lender of $38.00 if Borrower makes a payment on Borrower’s loan and the check or preauthorized charge with which Borrower pays is later dishonored. 
 RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower’s accounts with Lender (whether checking, savings, or some other account). This
includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower
authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the debt against any and all such accounts, and, at Lender’s option, to administratively freeze all such accounts to allow Lender to protect
Lender’s charge and setoff rights provided in this paragraph. 
 COLLATERAL. Collateral securing other loans with Lender may also
secure this loan. To the extent collateral previously has been given to Lender by any person which may secure this Indebtedness, whether directly or indirectly, it is specifically agreed that, to the extent prohibited by law, all such collateral
consisting of household goods will not secure this Indebtedness. In addition, If any collateral requires the giving of a right of rescission under Truth in Lending for this Indebtedness, such collateral also will not secure this Indebtedness unless
and until all required notices of that right have been given. 
 CONTINUING VALIDITY. Except as expressly changed by this Agreement, the
terms of the original obligation or obligations, including all agreements evidenced or securing the obligation(s), remain unchanged and in full force and effect. Consent by Lender to this Agreement does not waive Lender’s right to strict
performance of the obligation(s) as changed, nor obligate Lender to make any future change in terms. Nothing in this Agreement will constitute a satisfaction of the obligation(s). It is the Intention of Lender to retain as liable parties all makers
and endorsers of the original obligation(s), including accommodation parties, unless a party is expressly released by Lender in writing. Any maker or endorser, including accommodation makers, will not be released by virtue of this Agreement. If any
person who signed the original obligation does not sign this Agreement below, then all persons signing below acknowledge that this Agreement is given conditionally, based on the representation to Lender that the non-signing party consents to the
changes and provisions of this Agreement or otherwise will not be released by it. This waiver applies not only to any initial extension, modification or release, but also to all such subsequent actions. 

SMALL BUSINESS JOBS ACT CERTIFICATION. In accordance with Section 4107(d)(2) of the Small Business Jobs Act of 2010 that requires an
institution participating in the Small Business Lending Fund to obtain the following certification, Borrower hereby certifies to Lender that the principals (as defined below) of Borrower and its affiliates have not been convicted of , or pleaded
nolo contenders to, a sex offense against a minor (as such terms are defined in Section 111 of the Sex Offender Registration and Notification Act (42 U.S.C. 16911) 
 The term “principals” is defined as follows: If a sole proprietorship, the proprietor; if a partnership, each managing partner and each partner who is a natural person and holds a 20% or more
ownership interest in the partnership; and if a corporation, limited liability company, association or a development company, each director, each of the five most highly compensated executives or officers of the entity and each natural person who is
a direct or indirect holder of 20% or more of the ownership stock or stock equivalent of the entity. 
 RATE CALL OPTION. The interest
rate on this loan may be adjusted at Lender’s option anytime after December 20, 2017. Lender reserves the right in its sole discretion to adjust the payment amount as necessary to amortize the outstanding principal balance over the
remaining term. 
 SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Agreement on transfer of Borrower’s interest,
this Agreement shall be binding upon and inure to the benefit of the parties, their heirs, personal representatives, successors and assigns. If ownership of the Collateral becomes vested in a person other than Borrower, Lender, without notice to
Borrower, may deal with Borrower’s successors with reference to this Agreement and the indebtedness by way of forbearance or extension without releasing Borrower from the obligations of this Agreement of liability under the Indebtedness.

 MISCELLANEOUS PROVISIONS. If any part of this Agreement cannot be enforced, this fact will not affect the rest of the Agreement.
Lender may delay or forgo enforcing any of its rights or remedies under this Agreement without losing them. Borrower and any other person who signs, guarantees or endorses this Agreement, to the extent allowed by law, waive presentment, demand for
payment, and notice of dishonor. Upon any change in the terms of this Agreement, and unless otherwise expressly stated in writing, no party who signs this Agreement, 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; or impair, fall to realize upon or perfect Lender’s security interest in
the 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. 
 PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THE AGREEMENT. BORROWER
AGREES TO THE TERMS OF THE AGREEMENT. 
 THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND SHALL
CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. 
 BORROWER: 

LYNNHAVEN PARKWAY ASSOCIATES LLC 

LPA MANAGEMENT, LLC, Managing Member of Lynnhaven Parkway Associates LLC 
 BOULEVARD CAPITAL, LLC, Managing Member of LPA Management, LLC 
  

					
	 By:
	 	 




	 	(Seal)
		 	Jon S. Wheeler, Member of Boulevard Capital, LLC