EXHIBIT 10.6
NOTE
Austin, Texas
$1,000,000.00 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 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) "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.
(b) "Maker" means Surrey, Inc., a Texas corporation.
(c) "Maturity Date" means the maturity of this note, April 8,
2000, as the same may hereafter be accelerated pursuant to the provisions of
this note or any of the other Credit Documents.
(d) "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
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holders of this note from time to time, whether such holder acquires this note
through succession to or assignment from a prior Payee.
(e) "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 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 Revolving 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.
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. 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.
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
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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 on the
Maturity Date.
(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 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
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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 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
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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.
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
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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. Revolving Loan. Subject to the terms and provisions of the Loan
Agreement, Maker may use all or any part of the credit provided to be evidenced
by this note at any time before the Maturity Date. Maker may borrow, repay and
reborrow hereunder, and except as set forth in the Loan Agreement, there is no
limitation on the number of advances made hereunder so long as the total unpaid
principal amount at any time outstanding hereunder does not exceed the lesser of
(a) the Borrowing Base or (b) One Million Dollars ($1,000,000.00). Pursuant to
Section 346.003 of the Texas Finance Code, as amended, Maker and Payee expressly
agree that Chapter 346 of the Texas Finance Code shall not apply to this note or
to any loan evidenced by this note and that neither this note nor any such loan
shall be governed by or subject to the provisions of Chapter 346 in any manner
whatsoever.
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.
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
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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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