EXHIBIT 10.5
NOTE
Austin, Texas
$2,300,000.00 April 8, 1998
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 TWO MILLION THREE HUNDRED THOUSAND
DOLLARS ($2,300,000.00) (or the unpaid balance of all principal advanced against
this note, if that amount is less), together with interest as follows: (a)
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 and (b) the Additional Interest; 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 plus the
Additional Interest) 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) "Additional Interest" means the aggregate of (i) all
amounts paid by Maker to the holder of this note pursuant to the provisions of
Subparagraph (c) of numbered Paragraph 4 hereof and (ii) all other amounts
accrued or paid pursuant to this note or any of the other Credit Documents
(other than interest on this note at the Stated Rate) which, under applicable
laws, are or may be deemed to constitute interest on the indebtedness evidenced
by this note.
(b) "Construction Loan Agreement" means the Construction Loan
Agreement dated concurrently herewith between Maker and Payee, as the same may
be amended, supplemented, restated or replaced from time to time.
(c) "Loan Agreement" means the Loan Agreement dated
concurrently herewith between Maker and Payee, as the same may be amended,
supplemented, restated or replaced from time to time.
(d) "Maker" means Surrey, Inc., a Texas corporation.
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IDENTIFICATION:______
(e) "Maturity Date" means the maturity of this note, April 8,
2005, as the same may hereafter be accelerated pursuant to the provisions of
this note or any of the other Credit Documents.
(f) "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.
(g) "Stated Rate" means, for any day, a rate per annum equal
to the applicable Base Rate for that day for each Base Rate Borrowing made under
this note in accordance with the terms of the Loan Agreement and the applicable
LIBOR Rate for each LIBOR Rate Borrowing made under this note in accordance with
the terms of the Loan Agreement; provided, that if on any day the Stated Rate
for that day 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 and the Loan Agreement.
2. Loan Agreement; Advances; Security. This note has been issued
pursuant to the terms of the Loan Agreement, and is the Advance/Term Note
referred to in the Loan Agreement. Advances against this note by Payee or other
holder hereof shall be governed by the terms and provisions of the Loan
Agreement and the Construction Loan Agreement. Reference is hereby made to the
Loan Agreement and the Construction Loan Agreement for all purposes. Payee is
entitled to the benefits of and security provided for in the Loan Agreement and
the Construction Loan Agreement. Such security includes, among other security,
the Deed of Trust covering and affecting certain property situated in Travis,
Texas, more fully described therein, and the Security Agreements.
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IDENTIFICATION:______
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. All
loans and advances and all payments and permitted prepayments made hereon may be
endorsed by the holder of this note on a schedule which may be attached hereto
(and thereby made a part hereof for all purposes) or otherwise recorded in the
holder's records; provided, that any failure to make notation of (a) any advance
shall not cancel, limit or otherwise affect Maker's obligations or any holder's
rights with respect to that advance, or (b) any payment or permitted prepayment
of principal shall not cancel, limit or otherwise affect Maker's entitlement to
credit for that payment as of the date received by the holder. Amounts paid or
prepaid 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.
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 the Interest Payment Dates
and (ii) on the Maturity Date.
(b) The principal of this note shall be due and payable in
monthly installments in the amounts described below. The first such installment
shall be due and payable on January 8, 1999 and a like installment shall be due
and payable on the same 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. The amount of the required monthly principal installment shall
be $9,583.33 for each monthly payment due prior to or on April 8, 2001, and
shall thereafter be $12,777.78.
(c) Additional Interest consisting of Eight Thousand Six
Hundred Twenty-Five Dollars ($8,625.00) shall be deemed earned and accrued on
the date of this note and shall be due and payable on demand.
(d) All payments hereon made pursuant to this Paragraph shall
be applied first to accrued interest, the balance to principal.
(e) 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
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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 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
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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 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
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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.
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. Except as provided in the Loan Agreement, 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.
17. 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
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IDENTIFICATION:______
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.
18. 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.
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: /s/ Mark van der Hagen
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Name: Mark van der Hagen
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Title: Vice President
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