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EXHIBIT 10.3(c)
U.S. Small Business Administration SBA LOAN NUMBER
GP-767,982-3006-SA
NOTE
Austin, Texas
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(City and State)
$ 1,400,000. 00
(Date) November 17, 1994
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For value received, the undersigned promises to pay to the order of
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LIBERTY NATIONAL BANK
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(Payee)
at its office in the city of Austin, State of Texas or at holder's option,
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at such other place as may be designated from time to time by the holder
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------------------ONE MILLION FOUR HUNDRED THOUSAND & NO/100-----------------
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(Write out amount)
dollars with interest on unpaid principal computed from the date of each
advance to the undersigned at the rate of 9.50 percent per annum, payment to
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be made in installments as follows:
Equal installments of $ 16,329.00, including principal and interest,
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payable monthly, beginning one (1) month from date hereof, and the balance of
the principal and interest payable twelve (12) years from date hereof; with
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the further provision each said installment shall be applied first to
interest accrued to the date of receipt of said installment, and the balance,
if any, to principal.
The undersigned further agrees that the rate of interest herein shall
increase or decrease each calendar quarter to a rate equal to the minimum
published prime lending rate at large U.S. money center commercial bank: as
published in the Money Rates section of the Wall Street Journal plus 1.75
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percent per annum, and the change of the rate of interest in the Note shall
be determined and become effective on the first day of January, April, July
and October of each year.
The holder hereof may at its discretion ad just the amount of the
installments due herein to assure such payments will amortize the Note within
the bounds of the stated maturity
Notwithstanding the foregoing, the interest rate on this Note shall never
exceed the maximum rate permitted by State Usury Laws or pre-empting Federal
Law, if any, applicable to this loan.
If the undersigned shall be in default in payment due on the indebtedness
herein and the
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Small Business Administration (SBA) purchases its guaranteed portion of
said indebtedness' the rate of interest herein shall become Fixed at the rate
in effect as of the initial date of default. If the undersigned shall not be
in default in payment when SBA purchases its guaranteed portion, then the
rate of interest herein shall be fixed at the rate in effect as of the date
of purchase by SBA.
If this Note contains a fluctuating interest rate, the notice provision is
not a pre-condition for fluctuation (which shall take place regardless of
police). Payment of any installment of principal or interest owing on this Note
may be made prior to the maturity date thereof without penalty. Borrower shall
provide lender with written notice of intent to prepay part or all of this loan
at least three (3) weeks prior to the anticipated prepayment date. A prepayment
is any payment made ahead of schedule that exceeds twenty (20) percent of the
then outstanding principal balance. If borrower makes a prepayment and fails to
give atleast three weeks advance notice of intent to prepay, then,
notwithstanding any other provision to the contrary in this note or other
document, borrower shall be required to pay lender three weeks interest on the
unpaid principal as of the date preceding such prepayment.
The term "indebtedness" as used herein shall mean the indebtedness evidenced
by this Note, including principal, interest, and expenses, whether contingent,
now due or hereafter to become due and whether heretofore or contemporaneously
herewith or hereafter contracted. The term "Collateral" as used in this Note
shall mean any funds, guaranties, or other property or rights therein of any
nature whatsoever or the proceeds thereof which may have been, are, or
hereafter may be, hypothecated, directly or indirectly by the undersigned or
others, in connection with, or as security for, the indebtedness or any part
thereof. The Collateral, and each part thereof, shall secure the indebtedness
and each part thereof. The covenants and conditions set forth or referred to in
any and all instruments of hypothecation constituting the Collateral are hereby
incorporated in this Note as covenants and conditions of the undersigned with
the same force and effect as though such covenants and conditions were fully
set forth herein.
The Indebtedness shall immediately become due and payable, without notice or
demand, upon the appointment of a receiver or liquidator, whether voluntary or
involuntary, for the undersigned or for any of its property, or upon the filing
of a petition by or against the undersigned under the provisions of any State
insolvency law or under the provisions of the Bankruptcy Reform Act of 1978, as
amended, or upon the making by the undersigned of an assignment for the benefit
of its creditors. Holder is authorized to declare all or any part of the
indebtedness immediately due and payable upon the happening of any of the
following events: (1) Failure to pay any part of the Indebtedness when due; (2)
nonperformance by the undersigned of any agreement with, or any condition
imposed by, Holder or Small Business Administration (hereinafter called "SBA"),
with respect to the Indebtedness; (3) Holder's discovery of the undersigned's
failure in any application of the undersigned to Holder or SBA to disclose any
fact deemed by Holder to be material or of the making therein or in any of the
said agreements, or in any affidavit or other documents submitted in connection
with said application or the Indebtedness, of any misrepresentation by, on
behalf of, or for the benefit the undersigned; (4) the reorganization (other
than a reorganization pursuant to any of the provisions of the Bankruptcy
Reform Act of 1978, as amended) or merger or consolidation of the undersigned
(or the making of any agreement therefor) without the prior written consent of
Holder; (5) the undersigned's failure duly to account, to Holder's
satisfaction, at such time or times as Holder may require, for any of the
Collateral, or proceeds thereof, coming into the control of the undersigned; or
(6) the institution of any suit affecting the undersigned deemed by Holder to
affect adversely its interest hereunder in the Collateral or otherwise.
Holder's failure to exercise its rights under this paragraph shall not
constitute a waiver thereof.
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Upon the nonpayment of the Indebtedness, or any part thereof, when due,
whether by acceleration or otherwise, Holder is empowered to sell, assign, and
deliver the whole or any part of the Collateral at public or private sale,
without demand, advertisement or notice of the time or place of sale or of any
adjournment thereof, which are hereby expressly waived. After deducting all
expenses incidental to or arising from such sale or sales, Holder may apply the
residue of the proceeds thereof to the payment of the Indebtedness, as it shall
deem proper, returning the excess, if any, to the undersigned. The undersigned
hereby waives all right of redemption or appraisement whether before or after
sale.
Holder is further empowered to collect or cause to be collected or otherwise
to be converted into money all or any part of the Collateral, by suit or
otherwise, and to surrender, compromise, release, renew, extend, exchange, or
substitute any item of the Collateral in transactions with the undersigned or
any third party, irrespective of any assignment thereof by the undersigned, and
without prior notice to or consent of the undersigned or any assignee. Whenever
any item of the Collateral shall not be paid when due, or otherwise shall be in
default, whether or not the indebtedness, or any part thereof, has become due,
Holder shall have the same rights and powers with respect to such item of the
Collateral as are granted in this paragraph in case of nonpayment of the
Indebtedness, or any part thereof, when due. None of the rights, remedies,
privileges, or powers of Holder expressly provided for herein shall be
exclusive, but each of them shall be cumulative with and in addition to every
other right, remedy, privilege, and power now or hereafter existing in favor of
Holder, whether at law or equity, by statute or otherwise.
The undersigned agrees to take all necessary steps to administer, supervise,
presume, and protect the Collateral; and regardless of any action taken by
Holder, there shall be no duty upon Holder in this respect. The undersigned
shall pay all expenses of any nature, whether incurred in or out of court, and
whether incurred before or after this Note shall become due at its maturity
date or otherwise, including but not limited to reasonable attorney's fees and
costs, which Holder may deem necessary or proper in connection with the
satisfaction of the Indebtedness or the administration, supervision,
preservation, protection of (including, but not limited to, the maintenance of
adequate insurance) or the realization upon the Collateral. Holder is
authorized to pay at any time and from time to time any or all of such
expenses, add the amount of such payment to the amount of the Indebtedness, and
charge interest thereon at the rate specified herein with respect to the
principal amount of this Note.
The security rights of Holder and its assigns hereunder shall not be impaired
by Holder's sale, hypothecation or rehypothecation of any note of the
undersigned or any item of the Collateral, or by any indulgence, including but
not limited to (a) any renewal, extension, or modification which Holder may
grant with respect to the Indebtedness or any part thereof, or (b) any
surrender, compromise, release, renewal, extension, exchange, or substitution
which Holder may grant in respect of the Collateral, or (c) any indulgence
granted in respect of any endorser, guarantor, or surety. The purchaser,
assignee, transferee, or pledgee of this Note, the Collateral, and guaranty,
and any other document (or any of them), sold, assigned, transferred, pledged,
or repledged, shall forthwith become vested with and entitled to exercise all
the powers and rights given by this Note and all applications of the
undersigned to Holder or SBA, as if said purchaser, assignee, transferee, or
pledgee were originally named as Payee in this Note and in said application or
applications.
This promissory note is given to secure a loan which SBA is making or in
which it is participating and, pursuant to Part 101 of the Rules and
Regulations of SBA (13 C.F.R. 101.1(d)), this instrument is to be construed and
(when SBA is the Holder or a party in interest) enforced in accordance with
applicable Federal law.
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ATTEST: Surrey, Inc.
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/s/ Mary A. van der Hagen /s/ John B. van der Hagen
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Mary A. van der Hagen, Secretary John B. van der Hagen, President
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Note.-- Corporate applicants must execute Note, in corporate name, by duly
authorized officer, and seal must be affixed and duly attested: partnership
applicants must execute Note in firm name, together with signature of a
general partner.