EXHIBIT 10.21
NOTE
Austin, Texas
$1,000,000.00 April 8, 2000
FOR VALUE RECEIVED, SURREY, INC., a Texas corporation, promises to pay
to the order of CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking
association, at its banking house in the City of Austin, Travis County, Texas
(or such other place as the holder hereof may hereafter designate in writing),
in immediately available funds and in lawful money of the United States of
America, the principal sum of ONE MILLION DOLLARS ($1,000,000.00) (or the unpaid
balance of all principal advanced against this note, if that amount is less),
together with interest on the unpaid principal balance of this note from time to
time outstanding at the Stated Rate and interest on all past due amounts, both
principal and accrued interest, from the respective due dates thereof until paid
at the Past Due Rate; provided, that for the full term of this note the interest
rate produced by the aggregate of all sums paid or agreed to be paid to the
holder of this note for the use, forbearance or detention of the debt evidenced
hereby (including, but not limited to, all interest on this note at the Stated
Rate and the Past Due Rate) shall not exceed the Ceiling Rate.
1. Definitions. Unless otherwise defined herein, capitalized terms used
in this note shall have the same meaning in this note as in the Loan Agreement
(hereafter defined). As used in this note, the following terms shall have the
respective meanings indicated:
(a) "Business Day" means a day when Payee is open for all of
its commercial lending activities.
(b) "Ceiling Rate" means, on any day, the maximum nonusurious
rate of interest permitted for that day by whichever of applicable federal or
Texas laws permits the higher interest rate, stated as a rate per annum. On each
day, if any, that applicable Texas law establishes the Ceiling Rate, the Ceiling
Rate shall be the "weekly ceiling" (as defined in Chapter 1D of Title 79,
Revised Civil Statutes, 1925 -- "Chapter 1D" -- and ss.303 of the Texas Finance
Code -- "Texas Finance Code" -- as amended) for that day. Payee may from time to
time, as to current and future balances, implement any other ceiling under
Chapter 1D and the Texas Finance Code by notice to Maker, if and to the extent
permitted by Chapter 1D and the Texas Finance Code. Without notice to Maker or
any other person or entity, the Ceiling Rate shall automatically fluctuate
upward and downward as and in the amount by which such maximum nonusurious rate
of interest permitted by applicable law fluctuates.
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(c) "Credit Documents" means any and all papers now or
hereafter governing, evidencing, guaranteeing or securing or otherwise relating
to all or any part of the indebtedness evidenced by this note, including without
limitation this note.
(d) "Debt" means the indebtedness evidenced by this note and
the indebtedness to Payee incurred or evidenced by the Credit Documents.
(e) "Loan Agreement" means the Loan Agreement dated April 8,
1998 between Maker and Payee, as the same may have been or may be amended,
supplemented, restated or replaced from time to time.
(f) "Maker" means Surrey, Inc., a Texas corporation.
(g) "Maturity Date" means the maturity of this note, April 8,
2003, as the same may hereafter be accelerated pursuant to the provisions of
this note or any of the other Credit Documents.
(h) "Past Due Rate" means, on any day, a rate per annum equal
to the Ceiling Rate for that day, or only if applicable law imposes no maximum
nonusurious rate of interest for that day, then the Past Due Rate for that day
shall be a rate per annum equal to the Stated Rate plus three percent (3%).
(i) "Payee" means Chase Bank of Texas, National Association, a
national banking association, and any other holder or holders of this note from
time to time and, upon acquisition of this note by any holder or holders other
than the named payee, effective as of the time of such acquisition, the term
"Payee" shall mean all of the then holders of this note, to the exclusion of all
prior holders not then retaining or reserving an interest in this note, to the
end that all the rights, powers, remedies, liens, benefits and privileges
accruing and to accrue hereunder to Payee, as such term is used herein, shall
inure to the benefit of and be owned and held by the holder or holders of this
note from time to time, whether such holder acquires this note through
succession to or assignment from a prior Payee.
(j) "Prime Rate" means, on any day, the rate determined by
Payee as being its "prime rate" for that day. Without notice to Maker or any
other person or entity, the Prime Rate shall automatically fluctuate upward and
downward as and in the amount by which said prime rate fluctuates, with each
change to be effective as of the date of each change in said prime rate. THE
PRIME RATE IS A REFERENCE RATE AND DOES NOT NECESSARILY REPRESENT THE LOWEST OR
BEST RATE OR A FAVORED RATE, AND PAYEE DISCLAIMS ANY STATEMENT, REPRESENTATION
OR WARRANTY TO THE
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CONTRARY. PAYEE MAY MAKE COMMERCIAL LOANS OR OTHER LOANS AT RATES OF INTEREST
AT, ABOVE OR BELOW THE PRIME RATE.
(k) "Stated Rate" means, on any day, a rate per annum equal to
the Prime Rate for that day plus one percent (1.00%); provided, that if on any
day the Prime Rate for that day plus one percent (1.00%) would exceed the
Ceiling Rate for that day, the Stated Rate shall be fixed at the Ceiling Rate on
that day and on each day thereafter until the total amount of interest accrued
at the Stated Rate (as so fixed) on the unpaid principal balance of this note
plus the Additional Interest equals the total amount of interest which would
have accrued if there had been no Ceiling Rate. If this note matures (or is
prepaid) before such equality is achieved, then, in addition to the unpaid
principal and accrued interest then owing pursuant to the other provisions of
this note, Maker promises to pay on demand to the order of the holder of this
note interest in an amount equal to the excess (if any) of (a) the lesser of (i)
the total interest which would have accrued on this note if the Stated Rate had
been defined as equal to the Ceiling Rate from time to time in effect and (ii)
the total interest which would have accrued on this note if the Stated Rate were
not so prohibited from exceeding the Ceiling Rate, over (b) the total interest
actually accrued hereon to such maturity (or prepayment) date. Without notice to
Maker or any other person or entity, the Stated Rate shall automatically
fluctuate upward and downward in accordance with the provisions of this
Subparagraph.
2. Loan Agreement; Advances; Security. This note has been issued
pursuant to the terms of the Loan Agreement, and is the Term Note referred to in
the Loan Agreement. The advance against this note by Payee or other holder
hereof shall be governed by the terms and provisions of the Loan Agreement.
Reference is hereby made to the Loan Agreement for all purposes. Payee is
entitled to the benefits of and security provided for in the Loan Agreement.
Such security includes, among other security, the Deed of Trust covering and
affecting certain property situated in Travis County, Texas, more fully
described therein, and the Security Agreements. The unpaid principal balance of
this note at any time shall be the total of all amounts lent or advanced against
this note less the amount of all payments or permitted prepayments made on this
note and by or for the account of Maker. The proceeds evidenced by this note
represent a one-time advance to be made by Payee and applied to the indebtedness
of Maker to Payee under the Revolving Note. Amounts repaid under this note may
not be reborrowed.
3. Computation of Interest. Interest on the amount of each advance
against this note shall be computed on the amount of that advance and from the
date it is made. Interest at the Stated Rate shall be computed for the actual
number of days elapsed in a year consisting of 360 days, unless the Ceiling Rate
would thereby be exceeded, in which event, to the extent necessary to avoid
exceeding the Ceiling Rate, interest at the Stated Rate shall be computed on the
basis of the actual number of days elapsed in the applicable calendar year in
which accrued.
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4. Mandatory Payments of Principal and Interest.
(a) Accrued and unpaid interest on the unpaid principal
balance of this note shall be due and payable (i) on May 8, 2000, (ii) on the
eighth (8th) day of each succeeding calendar month prior to the Maturity Date
and (iii) on the Maturity Date.
(b) The principal of this note shall be due and payable in
monthly installments of Twenty-Seven Thousand Seven Hundred Seventy-Seven and
78/100 Dollars ($27,777.78) each. The first installment shall be due and payable
on May 8, 2000, and a like installment shall be due and payable on the eighth
(8th) day of each succeeding calendar month thereafter until this note shall
have been fully paid and satisfied; provided, that on the Maturity Date, the
entire unpaid principal balance of this note shall be finally due and payable.
(c) All payments hereon made pursuant to this Paragraph shall
be applied first to accrued interest, the balance to principal.
(d) If any payment provided for in this note shall become due
on a day other than a Business Day, such payment may be made on the next
succeeding Business Day (unless the result of such extension of time would be to
extend the date for such payment into another calendar month or beyond the
Maturity Date, and in either such event such payment shall be made on the
Business Day immediately preceding the day on which such payment would otherwise
have been due), and such extension of time shall in such case be included in the
computation of interest on this note.
5. No Usury Intended; Spreading. Notwithstanding any provision to the
contrary contained in this note or any of the other Credit Documents, it is
expressly provided that in no case or event shall the aggregate of (i) all
interest on the unpaid balance of this note, accrued or paid from the date
hereof and (ii) the aggregate of any other amounts accrued or paid pursuant to
this note or any of the other Credit Documents, which under applicable laws are
or may be deemed to constitute interest upon the indebtedness evidenced by this
note from the date hereof, ever exceed the Ceiling Rate. In this connection,
Maker and Payee stipulate and agree that it is their common and overriding
intent to contract in strict compliance with applicable usury laws. In
furtherance thereof, none of the terms of this note or any of the other Credit
Documents shall ever be construed to create a contract to pay, as consideration
for the use, forbearance or detention of money, interest at a rate in excess of
the Ceiling Rate. Maker or other parties now or hereafter becoming liable for
payment of the indebtedness evidenced by this note shall never be liable for
interest in excess of the Ceiling Rate. If, for any reason whatever, the
interest paid or received on this note during its full term produces a rate
which exceeds the Ceiling Rate, the holder of this note shall credit against the
principal of this note (or, if such indebtedness shall
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have been paid in full, shall refund to the payor of such interest) such portion
of said interest as shall be necessary to cause the interest paid on this note
to produce a rate equal to the Ceiling Rate. All sums paid or agreed to be paid
to the holder of this note for the use, forbearance or detention of the
indebtedness evidenced hereby shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and spread in equal parts throughout the full
term of this note, so that the interest rate is uniform throughout the full term
of this note. The provisions of this Paragraph shall control all agreements,
whether now or hereafter existing and whether written or oral, between Maker and
Payee.
6. Default. If any default, event of default or similar event (however
denominated) occurs under any Credit Document, then that shall automatically
constitute default under this note, and unless Payee declares the default fully
cured to Payee's satisfaction with any applicable grace period (if any) agreed
to in writing by Payee, then the obligation (if any) of Payee to make further
advances against this note shall cease and terminate and the owner or holder
hereof may, at its, his or her option, exercise any or all rights, powers and
remedies afforded under any Credit Document and by law, including the right to
declare the unpaid balance of principal and accrued interest on this note at
once mature and payable.
7. No Waiver by Payee. No delay or omission of Payee or any other
holder hereof to exercise any power, right or remedy accruing to Payee or any
other holder hereof shall impair any such power, right or remedy or shall be
construed to be a waiver of the right to exercise any such power, right or
remedy. Payee's right to accelerate this note for any late payment or Maker's
failure to timely fulfill its other obligations hereunder or under the other
Credit Documents shall not be waived or deemed waived by Payee by Payee's having
accepted a late payment or late payments in the past or Payee otherwise not
accelerating this note or exercising other remedies for Maker's failure to
timely perform its obligations hereunder or under the other Credit Documents.
Payee shall not be obligated or be deemed obligated to notify Maker that it is
requiring Maker to strictly comply with the terms and provisions of this note
and the other Credit Documents before accelerating this note and exercising its
other remedies hereunder or under the other Credit Documents because of Maker's
failure to timely perform its obligations under this note and the other Credit
Documents.
8. Costs and Attorneys' Fees. If any holder of this note retains an
attorney in connection with any default or to collect, enforce or defend this
note or any of the Credit Documents in any lawsuit or in any probate,
reorganization, bankruptcy or other proceeding, or if Maker sues any holder in
connection with this note or any of the Credit Documents and does not prevail,
then Maker agrees to pay to each such holder, in addition to principal and
interest, all reasonable costs and expenses incurred by such holder in trying to
collect this note or in any such suit or proceeding, including reasonable
attorneys' fees. Any amount to be paid under this
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Paragraph by Maker to Payee shall be a demand obligation owing by Maker to Payee
and shall bear interest from the date of demand until paid at the Past Due Rate.
9. Waivers by Maker and Others. Except to the extent, if any, that
notice of default is expressly required herein or in any of the other Credit
Documents, Maker and any and all co-makers, endorsers, guarantors and sureties
severally waive notice (including, but not limited to, notice of intent to
accelerate and notice of acceleration, notice of protest and notice of
dishonor), demand, presentment for payment, protest, diligence in collecting and
the filing of suit for the purpose of fixing liability and consent that the time
of payment hereof may be extended and re-extended from time to time without
notice to any of them. Each such person agrees that his, her or its liability on
or with respect to this note shall not be affected by any release of or change
in any guaranty or security at any time existing or by any failure to perfect or
to maintain perfection of any lien against or security interest in any such
security or the partial or complete unenforceability of any guaranty or other
surety obligation, in each case in whole or in part, with or without notice and
before or after maturity.
10. Paragraph Headings. Paragraph headings appearing in this note are
for convenient reference only and shall not be used to interpret or limit the
meaning of any provision of this note.
11. Venue; Choice of Law. This note is performable in Travis County,
Texas, which shall be a proper place of venue for suit on or in respect of this
note. Maker hereby irrevocably agrees that any legal proceeding in respect of
this note shall be brought in the district courts of Travis County, Texas, or in
the United States District Court for the Western District of Texas, Austin
Division (collectively, the "Specified Courts"). Maker hereby irrevocably
submits to the nonexclusive jurisdiction of the state and federal courts of the
State of Texas. Maker hereby irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this note or any
of the Credit Documents brought in any Specified Court, and hereby further
irrevocably waives any claims that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum. Maker further
irrevocably consents to the service of process out of any of the Specified
Courts in any such suit, action or proceeding by the mailing of copies thereof
by certified mail, return receipt requested, postage prepaid, to Maker. Nothing
herein shall affect the right of Payee to commence legal proceedings or
otherwise proceed against Maker in any jurisdiction or to serve process in any
manner permitted by applicable law. Maker agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE APPLICABLE
LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA FROM TIME TO TIME IN
EFFECT.
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12. Successors and Assigns. This note and all the covenants and
agreements contained herein shall be binding upon, and shall inure to the
benefit of, the respective legal representatives, heirs, successors and assigns
of Maker and Payee.
13. Records of Payments. The records of Payee shall be prima facie
evidence of the amounts owing on this note.
14. Severability. If any provision of this note is held to be illegal,
invalid or unenforceable under present or future laws, the legality, validity
and enforceability of the remaining provisions of this note shall not be
affected thereby, and this note shall be liberally construed so as to carry out
the intent of the parties to it. Each waiver in this note is subject to the
overriding and controlling rule that it shall be effective only if and to the
extent that (a) it is not prohibited by applicable law and (b) applicable law
neither provides for nor allows any material sanctions to be imposed against
Payee for having bargained for and obtained it.
15. Sale and Assignment. Payee reserves the right, exercisable in its
sole discretion and without notice to Maker or any other person, to sell
participations or assign its interest, or both, in all or any part of this note
or any loan evidenced by this note.
16. Prepayment. Maker may prepay this note, in whole or in part, at any
time without penalty or fee. All prepayments hereon shall be applied first to
any applicable prepayment charge, if any, next to accrued interest and the
balance to principal.
18. Business Loans. Maker warrants and represents to Payee and all
other holders of this note that all loans evidenced by this note are and will be
for business, commercial, investment or other similar purpose and not primarily
for personal, family, household or agricultural use, as such terms are used in
Chapter 1D of Title 79, Texas Revised Civil Statutes 1925, as amended.
19. Entire Agreement. This note and the other Credit Documents embody
the entire agreement and understanding between Payee and Maker and other parties
with respect to their subject matter and supersede all prior conflicting or
inconsistent agreements, consents and understandings relating to such subject
matter. Maker acknowledges and agrees that there is no oral agreement between
Maker and Payee which has not been incorporated in this note and the other
Credit Documents.
20. Renewal. To the extent of the face principal balance thereof, this
note is given, in part, in renewal, extension and rearrangement, and not in
extinguishment, of the unpaid principal balance of that certain promissory note
dated June 17, 1999, in the original principal amount of
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Two Million Five Hundred Thousand Dollars ($2,500,000.00) executed by Maker
payable to the order of Payee. All liens, assignments and security interests
securing the payment of said promissory note (including without limitation the
Deed of Trust and the Security Agreement) are hereby ratified, confirmed,
brought forward, renewed, extended and rearranged, as security for the payment
of this note, in addition to and cumulative of all other security for this note.
[SIGNATURE ON FOLLOWING PAGE]
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NOTICE PURSUANT TO TEX. BUS. & COMM. CODE SS.26.02
THIS NOTE AND ALL OTHER CREDIT DOCUMENTS EXECUTED BY ANY OF THE PARTIES
SUBSTANTIALLY CONCURRENTLY HEREWITH TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT
WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SURREY, INC., a Texas corporation
By:
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Name:
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Title:
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